(From Legal Scholarship Network: Legal Studies Research Paper Series, University of North Carolina
Analytical documents are a hallmark of the law school legal writing curriculum and of the practice of law. In these documents, the author usually applies a body of law to a set of facts and reaches a conclusion. Oftentimes, that conclusion is phrased as a prediction (“The court is likely to find…”), and many academics even refer to analytical documents as “predictive” document types. If that describes you, this Essay's goal is to convince you to change your ways.
Simply put, there is a difference between conducting a legal analysis and predicting the outcome of a legal dispute. If the author of an analytical document has only conducted a legal analysis, they have no business claiming that they can predict the outcome of the dispute. That distinction should be recognized in the teaching of analytical document genres and should be conveyed by legal professionals in their communication of legal analyses.
-December 12, 2018
Amicus Curiae Brief to the NLRB in Rio All-Suites Hotel & Casino
Jeffrey M. Hirsch
This amicus brief urges the NLRB to uphold its ruling in Purple Communications, which recognized employees' limited right to use employer-provided email for NLRA-protected communications. In particular, the brief argues that preexisting Supreme Court precedent and basic principles of property law give employees in many instances the right to communicate with each other about protected topics using employers' electronic communications systems. The brief also argues that even after the Supreme Court's Janus v. AFSCME decision, Purple Communications is consistent with the First Amendment.
-December 6, 2018
The New Guano: Legal Enforcement in Modern Sovereign Debt Markets
Mark C. Weidemaier
This essay examines the significance of the decades-long litigation against Argentina following that country’s default and subsequent restructuring of its public debt. Although litigation spanned nearly two decades, most accounts focus on the so-called pari passu injunction: the extraordinary remedy that ultimately induced Argentina to pay. Yet the litigation is more important for what it reveals about the evolving structure of sovereign debt markets. Effective legal enforcement does not require new law—or, anyway, not much new law. It requires specialized litigants, ready access to capital, and the ability to further mitigate the risk of investing in litigation through portfolio diversification. Such actors and mechanisms are routinely present in other forms of civil litigation, but have until recently played a limited role in sovereign debt markets. The lasting significance of the NML litigation is that it marks their arrival in force.
-October 1, 2018