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Abstract:
This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context. To fully understand the legal power of fuck, the nonlegal sources of its power are tapped. Drawing upon the research of etymologists, linguists, lexicographers, psychoanalysts, and other social scientists, the visceral reaction to fuck can be explained by cultural taboo. Fuck is a taboo word. The taboo is so strong that it compels many to engage in self-censorship. This process of silence then enables small segments of the population to manipulate our rights under the guise of reflecting a greater community. Taboo is then institutionalized through law, yet at the same time is in tension with other identifiable legal rights. Understanding this relationship between law and taboo ultimately yields fuck jurisprudence.

Cohen, Pacifica, First Amendment, psycholinguistics

Abstract:
This essay questions the methodology of Brian Leiter's latest addition to his Law School Rankings, the Most Downloaded Law Faculties, 2006. Leiter's new ranking purports to rank the top fifteen most downloaded law schools for 2006. While the ranking uses annual download data from the Social Science Research Network (SSRN), he excludes two schools entirely: #8 Emory School of Law and #10 Ohio State Moritz College of Law. In Leiter's own words, It was necessary to exclude Ohio State and Emory whose presence in the top 15 was due entirely to one provocatively titled article by Christopher Fairman who teaches at Ohio State and is visiting at Emory. The paper he refers to is entitled Fuck. It explores the legal implications of the use of the word. An earlier version of the piece is available on SSRN as a working paper; it is now available in final form at 28 Cardozo Law Review 1171 (2007). In this essay, I question Fuck's exclusion on three grounds. First, from a procedural standpoint, Leiter has not articulated precisely why this scholarship was excluded. Absent some articulation, authors are unable to predict future results. Is it the title, the subject matter, the author or article downloads that trigger exclusion? Second, from a scholarly perspective, Leiter's exclusion appears to be word taboo at work - precisely the theme of the article he now bans. Third, exclusion of any scholarship illustrates Lawrence Solum's right people thesis. In this case, Leiter's exclusion marginalizes the scholarship of others on the premise that the right people can't possibly be downloading in such large numbers. Hopefully, this Essay will advance the conversation on whether as a community we benefit from this type of law school ranking.

ranking, law school, law faculty, SSRN, taboo, fuck, Leiter

Abstract:
This Article challenges the prevailing rhetoric of notice pleading in the federal courts. By examining the reality of pleading practice in eight diverse substantive areas (ranging from antitrust to defamation, negligence to RICO), a rich continuum of fact-based pleading requirements emerges. The scholarly literature, however, largely ignores what federal courts require under this vast umbrella of "heightened pleading." This Article uncovers narrowly-targeted forms of fact-pleading, more broad-based particularity mirroring the standard used in fraud claims, and even "hyperpleading" - mandating virtually every element of a claim be pleaded with particularity. From this micro-examination of pleading, the Article develops the first contemporary model of pleading based on actual federal practice: the pleading circle. Contrary to the notice pleading myth, current practice is not a simple binary choice: fact-based pleading for fraud; notice pleading for everything else. Rather, there is a spectrum beginning with the factless and universally rejected "conclusory allegation." Simplified notice pleading follows. The varieties of heightened pleading are next with their increasing particularity requirements. Ultimately, pleadings reach the point of prolixity and the same fate as its conclusory cousin. The Article also explores potential explanations for the disconnect between notice pleading rhetoric and reality. One overriding conclusion emerges - notice pleading as a universal standard is a myth.

Abstract:
Pleading is the gateway into the federal courts. Consistent with the goal of merits determination, the Federal Rules of Civil Procedure typically impose only a minimal pleading requirement called "notice pleading." An elevated pleading burden requiring greater factual particularity - heightened pleading - is required only for cases involving fraud or mistake. Despite the limited situations requiring heightened pleading under the Federal Rules, federal courts routinely apply heightened pleading burdens to a myriad of cases. This Essay takes aim at the Federal Rule that spawns the widespread use of heightened pleading - Rule 9(b). Finding scant justification for Rule 9(b) even in the fraud context, this Essay makes the case for eliminating heightened pleading for fraud cases by amending the Federal Rules of Civil Procedure. The reasons are simple. Federal Rule of Civil Procedure 9(b) is more the product of historical accident than anything else. The current rationales for its retention are mere rationalizations that create divergent and unworkable standards in the fraud arena. Unfortunately, Rule 9(b) is not content to stay put. Federal courts routinely apply and extend Rule 9(b) heightened pleading into other substantive areas they deem "fraud-like." This ad hoc judicial rulemaking is in the face of repeated Supreme Court direction to stop. By striking Rule 9(b), heightened pleading can be contained: a rule-based solution to a rule-created problem.

civil procedure, pleading, fraud, civil practice, complaint, defenses

Abstract:
Growing Pains: Collaborative Law and the Challenge of Legal Ethics, explores the continuing challenge to collaborative law presented by ongoing questions of compatibility with legal ethics. After describing the current landscape of collaborative law, Growing Pains concentrates on three major developments in 2007 concerning the ethics of this interest-based, settlement-oriented dispute resolution process. In February 2007, the Colorado Bar Association Ethics Committee issued the first opinion in the country declaring collaborative law per se unethical. This article examines Colorado Opinion 115 and the reaction to it and ultimately concludes that it is unlikely to have much direct effect on collaborative law. Nonetheless, Growing Pains voices concern that Opinion 115's approval of an offshoot of collaborative law called cooperative law risks creation of an ADR turf war. Next, the article highlights the National Conference of Commissioners on Uniform State Laws (NCCUSL) effort to create a Uniform Collaborative Law Act. A NCCUSL Drafting Committee has already produced a working draft of a model act. Growing Pains describes the current drafting effort and its core feature being provisions to answer ethical concerns about confidentiality and privilege. The third ethical milestone explored in Growing Pains is the latest formal ethics opinion by the ABA Standing Committee on Ethics and Professional Responsibility. Released in October 2007, ABA Opinion 07-447 squarely addresses the compatibility of collaborative law with the Model Rules limitation on the scope of representation and concludes there is no violation. Characterizing these events as growing pains for collaborative law, Fairman concludes that unanswered ethical questions and challenges from an increasingly nuanced model of collaborative practice continue to provide challenges for this ADR process. Nonetheless, while ethical concerns are real and potentially limiting to the growth of the collaborative practice, our existing ethics regimes, along with proposed modifications, can respond to these challenges.

alternative dispute resolution

Abstract:
Collaborative law is a form of alternative dispute resolution involving a nonadversarial participatory process of informal conferences by the parties and their lawyers to achieve settlement. The unique twist of collaborative law is the disqualification or withdrawal agreement requiring that the lawyers participate solely for settlement purposes and cannot represent the parties in litigation. While this practice has begun to take hold in the family law arena, its growth is hampered by questions of compatibility with rules of professional ethics. Critics, including some collaborative law practitioners, find it difficult to square the principles and practices of collaborative law with the professional rules of ethics concerning everything from zealous advocacy to confidentiality to terminating representation. While the ideals of legal ethics and the ideals of collaborative law seem on a collision course with one another, there is a way to accommodate both. We should end the current academic exercise of trying to fit collaborative law within a legal ethical framework that was not designed for it, and instead squarely address the compatibility issues with a new Model Rule of Professional Conduct. To start this process, this Article proposes a new Model Rule 2.2: The Collaborative Lawyer and proposed commentary. Whether others agree with this proposal or not, this Article frames the issues for future debate on the practice, including the ethics, of collaborative lawyering.

loyalty, candor, disqualification