Where Truth and the Story Collide: What Legal Writers Can Learn from the Experience of Non-Fiction Writers about the Limits of Storytelling

This Chapter examines what can be gained and what can be lost by using storytelling in legal writing. After reviewing some basic principles of legal storytelling, the Chapter reviews some lessons that can be learned from the experience of the New Journalists who adopted literary techniques in their non-fiction work. In the end, the Author concludes that while there is much value in using the tools of fiction in legal writing, it is only with a blend of narrative and analysis that we most successfully do our jobs as lawyers

Victimized Twice: The Reasonable Efforts Requirement in Child Protection Cases When Parents Have a Mental Illness

State child protection agencies are required by federal law to exert reasonable efforts to keep families together before seeking termination of parental rights. Some states, however, have created an exception to this requirement when the parent involved suffers from a chronic mental illness. Moreover, even in those states that enforce the requirement, the reunification services provided to parents with a mental illness often do not meet the needs of those parents. This Article argues that although parents with a mental illness face serious challenges in caring for their children, they should not be categorically excluded from reunification efforts by means of a state statute. It further contends that in order to be reasonable reunification services must be reasonably calculated to address the specific issues faced by parents with a mental illness. The Article concludes with several suggestions on how this goal can be accomplished even in the face of scarce resources.

Moving Violations: An Examination of the Broad Preemptive Effect of The Carmack Amendment

This Article addresses the general principles of preemption, and describes the history, purpose and language of the Carmack Amendment. The Article then demonstrates that at the time the amendment was passed, Congress had no intention of preempting claims based on moving industry misconduct. Part II discusses the constitutional principles that govern application of the law of federal preemption and describes how application of preemption in Carmack Amendment cases has diverged from the overall application of preemption principles in other areas of congressional legislation. Finally, Part III argues that the courts have improperly granted the moving industry carte blanche to deceive and mistreat consumers without consequence, and suggests congressional action to solve this problem

Finding a Reasonable Way to Enforce the Reasonable Efforts Requirement in Child Protection Cases

Under federal law, state child protection agencies are required to exert reasonable efforts to reunite abused and neglected children with their parents before seeking to terminate parental rights and free the children for adoption. The scope of this requirement is undefined in federal statutes and in the statutory law of many states. As a result, it has fallen to appellate courts to determine the degree of effort a state agency must exert before the relationship between a parent and a child is severed. This has proven no easy task. By the time a parental termination case has reached an appellate court, the children may have been in the care and protection of the state for a lengthy time and may have developed a bond with foster parents who are hoping to adopt them. This leaves the appellate court with a difficult choice if it finds that the efforts of the state agency have been insufficient or poorly matched to the needs of the family in question. Faced with these circumstances, many appellate courts have simply rubber-stamped the efforts of the state agency without much review, and in effect read the reasonable efforts requirement out of existence. Other appellate courts have done a more exacting examination of whether reasonable efforts were made. When these courts have found deficiencies, the almost inevitable effect has been to delay permanency for the children involved by requiring the agency to go back and make further attempts at reunification. After reviewing appellate decisions of both types, the Article concludes that neither approach is satisfactory. The Article offers three ways to alleviate the thorny problems faced by appellate courts in these difficult cases. First, it contends that in the absence of a federal definition of reasonable efforts, states should develop more precise definitions of their own. Second, it argues that courts make better use of empirical research when evaluating whether a state agency has made reasonable efforts, so as to make a more accurate assessment of whether the state‘s efforts are satisfactory. Finally, it suggests that state courts discontinue the practice of considering reasonable efforts as a condition precedent to termination of parental rights. The Article acknowledges that these approaches singly or in combination will not completely resolve the issues raised by reasonable efforts cases, but asserts they will help ease the problems created by those difficult cases

Finding a Reasonable Way to Enforce the Reasonable Efforts Requirement in Child Protection Cases

Under federal law, state child protection agencies are required to exert reasonable efforts to reunite abused and neglected children with their parents before seeking to terminate parental rights and free the children for adoption. The scope of this requirement is undefined in federal statutes and in the statutory law of many states. As a result, it has fallen to appellate courts to determine the degree of effort a state agency must exert before the relationship between a parent and a child is severed. This has proven no easy task. By the time a parental termination case has reached an appellate court, the children may have been in the care and protection of the state for a lengthy time and may have developed a bond with foster parents who are hoping to adopt them. This leaves the appellate court with a difficult choice if it finds that the efforts of the state agency have been insufficient or poorly matched to the needs of the family in question. Faced with these circumstances, many appellate courts have simply rubber-stamped the efforts of the state agency without much review, and in effect read the reasonable efforts requirement out of existence. Other appellate courts have done a more exacting examination of whether reasonable efforts were made. When these courts have found deficiencies, the almost inevitable effect has been to delay permanency for the children involved by requiring the agency to go back and make further attempts at reunification. After reviewing appellate decisions of both types, the Article concludes that neither approach is satisfactory. The Article offers three ways to alleviate the thorny problems faced by appellate courts in these difficult cases. First, it contends that in the absence of a federal definition of reasonable efforts, states should develop more precise definitions of their own. Second, it argues that courts make better use of empirical research when evaluating whether a state agency has made reasonable efforts, so as to make a more accurate assessment of whether the state‘s efforts are satisfactory. Finally, it suggests that state courts discontinue the practice of considering reasonable efforts as a condition precedent to termination of parental rights. The Article acknowledges that these approaches singly or in combination will not completely resolve the issues raised by reasonable efforts cases, but asserts they will help ease the problems created by those difficult cases

Constitutional Law--First Amendment--No Constitutional Right to Vote for Donald Duck: The Supreme Court Upholds the Constitutionality of Write-in Voting Bans in Burdick v. Takushi

This Note examines the Supreme Court decision in Burkick v. Takushi in detail and questions the Court\u27s conclusion that the voters\u27 interest in casting write-in votes is so slight that write-in bans are presumptively valid. The Note concludes that the Burdick decision is both inconsistent with the Court\u27s previous ballot access jurisprudence, and restricts the electoral process at a time when voters are clamoring for more diverse choices in the voting booth. Section I of this Note briefly reviews a number of cases that considered the constitutionality of legislation governing candidate access to election ballots. The ballot access cases are relevant because federal courts considering write-in voting restrictions have adopted a standard of review originally tailored for ballot access restrictions. Section II describes the majority and dissenting opinions in Burdick. Section III analyzes the nature of write-in voting as an expression of political speech and association protected under the First and Fourteenth Amendments of the Constitution. This section will challenge the Burdick Court\u27s interpretation of the standard of review applied to ballot access cases. Finally, this section demonstrates that the Supreme Court failed to correctly weigh the injury to voters imposed by the write-in ban against the relatively insignificant state interest in banning such votes

WHEN THE STORY IS TOO GOOD TO BE TRUE: A LAWYER\u27S ROLE IN RESISTING THE LURE OF NARRATIVE

Storytelling is important in legal persuasion. The power of a good story is why an attorney strives to mold the facts of a case into a tale with clear heroes and villains. High profile bullying stories and the reaction to those stories by prosecutors, legislators, and the legal academy provide examples of lawyers’ susceptibility to the power of an emotional narrative. This Article explores how social problems, like those relating to Phoebe Prince, Tyler Clementi, and Meagan Meiers, are likely to seem more real and pressing when presented in human terms as opposed to the abstract consequences

An Elective Advanced Course

This Article discusses the experiences of offering an Advanced Legal Research and Writing tutorial as an elective at Western New England College School of Law. This course is taught by a member of the Legal Research and Writing faculty on a rotating basis. This elective course allows students the opportunity to research and write for another semester of law school