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Winter 2017, Beyond Borders




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

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

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.

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

“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

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.

Sidebar: How Not to Litigate a Case

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.



Ethics: The Ethics of a Lawyer’s Mistake

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.