April 16, 2015

Enhancing Credibility in Brief Writing by Using Oral Argument Techniques

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Category: Legal Writing, Public
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This semester in Professor Susan Bay’s Advanced Legal Writing course, Rhetoric and Persuasion, our class discussed the means of persuasion: logos, pathos and ethos. Ethos immediately intrigued me because I could not grasp how to employ ethos in brief writing. One legal scholar, Professor Kirsten K. Davis, explains ethos as “classically considered the ‘persuasive force of a person’s character.’” In one word, ethos can be defined as credibility. Reading articles from legal scholars like Professor Davis helped, but I still was missing a connection. And then it occurred to me that I had been familiar with credibility, just in a different branch of advocacy: oral arguments.

My understanding of oral arguments stems from my participation in Moot Court. I am proud to be a Moot Court enthusiast. I did not know about it until Professor Rebecca Blemberg recommended that my 1L Legal Writing, Analysis and Research classmates and I attend the semi-finals and finals of the Jenkins Honors Moot Court Competition. I was awestruck by the oralists. I vividly recall standing with Professor Blemberg, telling her that I could never recite law or formulate an oral argument the way those students did. To my great surprise, one year later, I competed in the Jenkins Competition.

Through participating in the Appellate Writing and Advocacy course as a student and as a student coach, the Jenkins Competition as a competitor and a student coach, and the National Moot Court Competition as a competitor, I have received and shared advice about how to be a credible advocate at the podium. Here are some ideas about credibility that transcend oral arguments, and that you can apply to your own brief writing.

Respect Your Audience.

Respecting your audience is one way to earn credibility. Just as an oralist does in oral arguments, use proper form when addressing courts in your brief (i.e. the court you are writing to is written as “This Court should,” and a court you are writing about should be written as “The court in Smith”). You can also show respect for your reader and earn your reader’s respect by being respectful to others. Address strong counterarguments or, if you are responding, then the opposing counsel’s strong arguments, and provide specific reasons why those arguments are flawed whether it be because of logic, fact, or policy. Read more »

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Michael Sam and the NFL Locker Room: How Masculinities Theory Explains How We View Gay Athletes

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footballLast year, Michael Sam became the first openly gay player in the National Football League. Sam was drafted by the St. Louis Rams in the seventh and final round of the draft. He survived the initial round of pre-season cuts with the team, but was let go when the team had to make a 53-player roster. He was picked up by the Dallas Cowboys and played on the team’s practice squad. After seven weeks with the Cowboys, Sam was released and remained unsigned the rest of the season.

Sam’s coming out and his subsequent drafting and playing in the NFL caused quite a stir. According to one Sports Illustrated article, one NFL player personnel assistant said, “I don’t think football is ready for [an openly gay player] just yet.”

But why? Read more »

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Israel Reflections 2015–Day 7: Moty Cristal

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Category: Marquette Law School, Mediation, Public
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One of the most interactive and influential speakers during the trip was Moty Cristal, the CEO of Next Consulting. Having begun his career as one of Israel’s leading negotiators, Moty now conducts international negotiation trainings for the private sector. He made time to speak to us at the Rabin Center and his lesson was among the favorites of the trip.  As our last speaker of the trip, I knew Moty would be a great wrap-up!

Student Sean A. McCarthy recalls his experience:

Moty Cristal has become one of the leading negotiation experts in Israel and my class was fortunate enough to meet with him in Tel Aviv.  He had the class participate in an exercise that involved three people dividing up a large sum of money amongst each other. Each role (A, B, and C) was given a different amount of bargaining power and rules for reaching an agreement. Moty formula (2)If all three individuals were able to come to an agreement, they could split up $121 million. However, if A and B reached an agreement, they would split $110 million; if A and C reached an agreement, they would split $84 million; and if B and C reached an agreement, they would split $50 million.

As a member of the A group, I realized that I was going into the exercise with virtually all of the negotiating power.  I was also fairly confident that a deal would be reached and that I would be a member of the deal. Ultimately, I was able to agree with B to split the $110 million with $26 million going to B and $92 million going to myself. During the debrief, I noticed that A was a party to all of the agreements reached, except for one. Many of the groups talked about how difficult it was to take the power away from A. In relation to international conflict, Moty explained that A groups could, in almost every situation, include the excluded party without losing anything themselves. This viewpoint—that while the pie can be expanded, ultimately some sharing is required for an agreement to be reached—was one of the most important lessons I learned on the trip.

Student Alex Evrard provides a different viewpoint on the experience:

During the exercise, I was a member of Nation C.  Going into the negotiation with two much more powerful nations, I had little room to negotiate an agreement in which I was not the nation left out.  Although my two opponents were inclusive and included me in an agreement, my fellow Nation C negotiators were not as fortunate; many of them reported back that they were left out of the final agreement. Moty’s lesson focused on how to negotiate while in a powerless situation. He told the group a story about the only time C was ever able to gain all of the money. In that situation, C was able to persuade his group members to agree to a coin flip. His lesson to the powerless negotiator was to negotiate as if there were no power. Instead of focusing on coalitions and the use of power, focus on the process of the agreement and working toward a solution that can benefit everyone. This was a wonderful exercise that left an impression on a good number of the students.

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April 15, 2015

ACLU Attorney Says Tighter Voting Rules “Not Healthy” for Democracy

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Category: Election Law, Political Processes & Rhetoric, Public, Speakers at Marquette
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There was a sea change in the approach to election issues across America in the late 2000s, as Dale Ho sees it. He isn’t sure what the cause was, but he is sure it wasn’t a good development. Ho is director of the American Civil Liberties Union Voting Rights Project, which makes him one of the leaders of legal opposition nationwide to tightening the rules on who can vote.

Ho told an “On the Issues with Mike Gousha” session at Eckstein Hall on Wednesday that voting rights issues had largely drawn bipartisan support for decades.

“We had thought we had largely achieved a consensus in this country around universal suffrage, basic access for everyone (to voting),” Ho said. “Most of the debates about voting rights since the early 1970s were about redistricting – are the lines being drawn fairly for every community, are they being gerrymandered for partisan reasons, things like that. The trend remained toward greater liberalization in terms of ballot access. We didn’t see a lot of fights about registration and ballot access. .  . .

“In the late 2000s, something changed.” Read more »

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Stanley Kutler, American Legal Historian

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Stanley KutlerThe obituaries for Stanley Kutler, a retired University of Wisconsin professor who passed away on April 7, tended to stress Kutler’s large role in obtaining public access to the Nixon Watergate tapes. Only 63 hours of those tapes had been released before Kutler’s lawsuit against the National Archives and Records Administration, but his efforts resulted in the release of more than 3,000 additional hours. Kutler and other scholars were then able to use material on the tapes to detail the Nixon Administration’s frequent and sometimes shocking abuses of political power.

Unfortunately, the obituaries largely overlooked Kutler’s decades of extraordinary work as a legal historian. His numerous books and articles include Judicial Power and Reconstruction Politics (1969), Privilege and Creative Destruction: The Charles River Bridge Case (1971), and American Inquisition: Justice and Injustice in the Cold War (1984). All of these works explored specific cases in the context of broader historical movements. The facts and social complexities of the cases were always more important for Kutler than were the rules and corollaries spouted from one appellate bench or another.

Kutler’s work as a legal historian placed him at the center of the “new legal history” that emerged during the 1960s. Read more »

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Israel Reflections 2015: Day 7 — The Rabin Center

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On the beginning of day seven of our trip (our last day!!), we visited the Rabin Center museum.  This museum commemorates the life and career of late Prime Minister Yitzhak Rabin through telling the story of Israeli history.  And the view from the Center over Tel Aviv (pictured below) cannot be beat!

Student William Nash shares his personal reaction to the Rabin museum:

“We began our last day in Israel by visiting the Rabin Center Museum in Tel Aviv. It was a nice morning—warm, with an easy, steady breeze. Standing out on the balcony, we overlooked the rabin-centerTel Aviv skyline beaming just beneath the prominence of the late-morning Mediterranean sun. It was a picture of peace. But at the time I didn’t appreciate the profound character and meaning of the ambiance. To me, it was a reprieve from constant bustle of the trip. And it was the perfect opportunity to take some last-minute pictures. Read more »

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Armed Forces Appeals Judges Hear Arguments, Offer Advice in Eckstein Hall Session

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Category: Federal Law & Legal System, Judges & Judicial Process, Marquette Law School, Public
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“When you’re done, sit down.”

Pithy but important advice on how to present an oral argument to an appeals court was one of the beneficial things Marquette Law School students had a chance to hear Tuesday. That was when the United States Court of Appeals for the Armed Forces convened for a session in Eckstein Hall, followed by a question and answer session with the court’s five judges.

The court, an Article I entity which hears oral arguments in about three dozen cases a year, heard oral arguments in the appeal of an Air Force staff sergeant, Joshua K. Plant. He was convicted in 2012 of two counts of aggravated sexual assault of a child, adultery, and child endangerment and given a sentence that included 12 years of confinement. Included in Tuesday’s proceedings: Joshua J. Bryant, a third-year Marquette law student, who presented amicus curiae arguments in support of the sergeant’s appeal.​

First, here’s the case the court heard. Then, we’ll summarize some of the advice. Read more »

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April 14, 2015

Israel Reflections 2015–Day 6: Bar Ilan University

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One of the most important parts of our trip was spending time with students from other universities and comparing academic experiences. During our time in Tel Aviv, we were privileged to meet with Professor Michal Alberstein and other faculty at Bar Ilan University as well as several students to discuss their dispute resolution curriculum and the different practical experiences offered to students.

Student Avery Mayne offers some insight: Read more »

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April 13, 2015

The Study of International Law in Foreign Law Schools: A Brief History

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Category: International Law & Diplomacy, Public
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In my last post I provided a short history on international legal education in the United States. This time I offer the global equivalent: a (very) rough sense for the evolution of law school study requirements in a number of foreign countries, based on a combination of two UNESCO surveys from the mid-twentieth century and my recent research on contemporary practice.

Here are the results: Read more »

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Israel Reflections 2015 — Day 6: The Netanya Ethiopian Center

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Another portion of our cultural immersion was an invitation to the Netanya Foundation Ethiopian Center. An extremely rich cultural experience, the people at the Netanya Center shared traditional tea and bread-breaking with our group (shown below), as well as a tour of the facilities and resources available to the community. The Netanya Center was an experience that the students found incredibly impactful as they also reflected on community differences here in Milwaukee.

Student Katie Shaw shares her experience and her personal reflections:

“As part of our visit in Israel, we visited the Netanya Foundation Ethiopian Heritage Center, a community center located in Netanya that supports the local population of Ethiopian Jews, many of whom are first or second generation immigrants to Israel. Our guide throughout the Center was Avi, an Ethiopian Jew who traveled to Sudan to later migrate to Israel in 1984. Heidi, who works at the Ethiopian Heritage Center, helped translate from Hebrew to English for Avi. Read more »

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April 12, 2015

Israel Reflections 2015–Day 6: Givat Haviva

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On our sixth day in Israel, the students visited Givat Haviva, an educational learning campus with a focus on peace in the Middle East. After a short presentation, our guide Lydia Aisenberg took us directly to the Green Line (the 1947 UN Partition Line) that divides the town of Barta’a (or Barta) between Israel and the West Bank. Rather than speak of the conflict that surrounds the town as a negative force, Lydia explained the history of the Green Line, the cultural richness of the town of Barta’a, and what the division means for the future of the conflict.

Student Ellen French shares her thoughts:

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April 11, 2015

Israel Reflections 2015–Day 5: Dinner in a Druze Village

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Druze-villageThroughout the trip, the students had opportunities to immerse themselves in the culture of Israel. As part of this ethnic immersion, we enjoyed a dinner in a Druze village.  The Druze religion presented both some familiar elements as well as several that were unique to us. Student Samuel Magnuson recollects the dinner, shares background on the Druze, and gives his thoughts on their culture:

On Wednesday, March 11, after a full day in which we visited the Yardenit Baptism site, Haifa University, and the Bahá’í Gardens, we went to a Druze Village near Haifa for dinner. This was one of the highlights of the trip for me because we got to eat an incredible meal prepared by one of the women in the Druze village. I will explain more about what we learned about the Druze in a minute, but I must first discuss the food. When we arrived, we entered a dining hall where we sat at tables of about eight per table. The meal was family-style, meaning that the hosts kept bringing bowls of deliciousness for us to pass around. Of note, we ate stuffed peppers with arguably the sweetest rice I’ve ever experienced. We also had stuffed grape leaves, a really tasty chickpea dish, meatballs, Mediterranean salad, and a main dish of turkey with rice. While all of it was incredible, I must say that the stuffed peppers and chickpeas stood out to me, partially because neither of these dishes are ones I have been incredibly fond of in the States. However, the way the dishes were prepared that night (possibly because of the sauce) led me to eat seconds, thirds, and maybe fourths of each of these items. I also drank several glasses of what I thought was sweet tea . . . only to find out after that this was actually date juice. Fortunately, my stomach was prepared for such an altercation at this junction of the trip. Read more »

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