Winter 2017, Beyond Borders

Children's Rights

Representing Unaccompanied Minors in Deportation Proceedings

Liz Shields

What it’s like to work with children from war-torn countries, and how to best help them.

Criminal

The Unique Challenges of Defending a Terrorism Prosecution

Joshua L. Dratel

The substantive and procedural difficulties of defending a case in which you may not even be allowed to see all the evidence.

Sua Sponte: A Judge Comments

Hon. James G. Carr

A judge describes what it’s like to be in the middle of a case with prejudicial labels such as “terrorist.”

International Law

Playing the Sovereign Card: Defending Foreign Sovereigns in U.S. Courts

Laura G. Fergusson and Charles F. B. McCaleer Jr.

An overview of the special rules that apply to foreign sovereigns during litigation.

Arbitraging Between the U.K. and the U.S.: Differences in the Legal Playing Field

Mark Stephens

While their justice systems are related, there are important differences in the legal playing field.

Tribal Law & Courts

Appearing in Tribal Court

Brian K. Nichols

There are sometimes good reasons for submitting to a tribal court’s jurisdiction.

Opening Statement: Owning Up to My Bias . . . and Steps Toward Making Change

Laurence F. Pulgram

It happened to be Christmas Eve. At Toys-R-Us, I had successfully wrangled the last available Lego starship and headed for the checkout. All the lines were long. I checked out the customers waiting, and I checked out the cashiers. I went for lane 2 over lane 1. Five minutes later, when lane 2 had not budged, it hit me why I was standing in it: My subconscious, unconscious brain had told me that the characteristics of my cashier—gender, accent, race, body shape, age—would make for a quicker checkout than the next cashier over. My biases were not only unconscious; they were also wrong.

From the Bench: Moving Beyond Gender: Effective Deployment of the Legal Arsenal

Hon. Cheryl Ann Krause

After spending most of my career as a litigator, I have realized there is good reason litigation is often likened to battle. Most obviously, the practice of the law carries with it enormous stakes, and the consequences of a single case matter deeply to the parties and can reverberate through countless lives. But there is a link, too, between law and combat when it comes to how we attain a successful outcome—one that is instructive for the training we provide our cadets in the law and for breaking down barriers to success as they progress through the ranks.

Trademarks

iWitness: Can Trademark Laws Dictate What Is Disparaging?

Yuri Mikulka and Caleb Bean

Can federal trademark law prohibit registration of trademarks that are disparaging? Currently, yes. But how do you determine what is disparaging? And wouldn’t such a prohibition violate our First Amendment right to free speech? Possibly.

On the Papers: The Point of a Paragraph and Where to Find It: The Construction of the English Paragraph, Part IV

George D. Gopen

“The issue states what the paragraph will concern, while the point lets you know why the paragraph was written.” I have been exploring English paragraph structure for three essays in this series, trying to explain how a paragraph’s “issue” (1) may take one, two, or three sentences to state, and (2) is a different concept from the paragraph’s “point.” In this fourth essay, we turn our attention to where in a paragraph the reader expects to encounter its point.

Corporate Protection

Global Litigator: Compliance with U.S. Anticorruption Laws in Emerging Markets

Ronak D. Desai

A long-standing U.S. federal investigation into allegations of pervasive corruption at Wal-Mart Stores Inc.’s foreign operations uncovered possible evidence of bribery of varying magnitude in emerging markets all over the world, including India, China, Mexico, and Brazil. Although it remains unclear whether the company will face major charges under the Foreign Corrupt Practices Act (FCPA), the ongoing, multi-year investigation highlights the acute risks and profound costs of conducting business in emerging markets around the world.

Litigator's Muse: William Butler Yeats and How You Say Your Case

Michael E. Tigar

He struck out “marches” and wrote “slouches.” This is one of the wisest edits in the history of literature.

Litigation & Trials

Advance Sheet: Facebook Fandango

Robert E. Shapiro

Few technological developments in recent years have had as great or sudden an impact on our lives as social media. Virtually unknown seven or eight years ago, the likes of Facebook, Twitter, LinkedIn, and others now consume vast amounts of most people’s time, rivaling even that spent on that other great transformational technology, television.

Sidebar: How Not to Litigate a Case

Kenneth P. Nolan

A rookie cop was confronted by a maniac trying to whack him with an iron hammer. As taught, my buddy drew his gun and ordered him to drop the weapon. Instead, the guy charged. Reluctant to shoot, the cop ran behind a parked car. Anyone raised in Brooklyn knew that you could never be caught as long as you kept running around a car. If you kept the car between you and the punk who wanted to rub your face in the asphalt, you were safe. So the cop kept running around the car chased by the lunatic until backup arrived and the perpetrator was subdued and arrested.

Scruples: Helping Litigation Clients Pay Expenses

Michael Downey

“Nemesis has brought a new products liability case against ACME Products,” Paradox began. “Nemesis’s client is flat broke, but Nemesis volunteered that Nemesis’s firm would fly the client in for the deposition. Isn’t that unethical?”

Government

Sunshine Laws: Freedom of Information Act Follows Government Workers Home

Charles D. Tobin

My iPhone sits on my nightstand when I’m sleeping. Clients, colleagues, and family know that checking it is the first and last thing I do every day. I have at least one eye on emails—both my work and personal accounts—all day long.

Ethics

Ethics: The Ethics of a Lawyer’s Mistake

William Freivogel

A client comes to its law firm for help in enforcing a commercial lease. Ben, a partner who retired two years ago, had drafted the lease. So, Betty, another real estate lawyer, takes a look at the lease. She becomes concerned about the paragraph that has caused a dispute. That paragraph is not in the law firm’s standard commercial lease forms. Betty emails Ralph, the law firm’s general counsel, expressing her concerns. Ralph, in turn, forwards the email to Marsha, chair of the executive committee. Marsha immediately forwards the email to Ivan, the partner who deals with the firm’s malpractice insurance. I hope this conflicts scenario isn’t familiar to any readers. But if it is, keep reading.

Litigators and Journalists: Litigators Can Learn Much from TV Journalists

Scott Arnold

Whether you’re standing in a courtroom or a TV studio, you have a limited amount of time to communicate and to get your points across in the most effective way possible. With viewers in the same room—or on the other end of a station’s signal or web stream—you have to distill your message to its essence and put yourself in the seats of your audience.