“If you look at finance or medicine or sports, almost every other thing in the world is using data to make better decisions,” says Ed Walters. The ABA Journal’s Jason Tashea speaks with Walters, editor of “Data-Driven Law: Data Analytics and the New Legal Services.” The book is a collection of articles by data scientists, lawyers and technologists on a breadth of topics, including data mining, the accuracy of technology-assisted review in e-discovery and quantifying the quality of legal services.

How to stop worrying and learn to love data-driven law

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Originalism is the ascendant legal theory espoused by conservative legal thinkers, including the majority of U.S. Supreme Court justices. But far from being an objective framework for constitutional interpretation, says author and attorney Madiba Dennie, its true purpose is to achieve conservative political aims regardless of the historical record. 
In The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, Dennie traces the roots of originalism as a legal theory back to Brown v. Board of Education of Topeka, though the Supreme Court rejected the arguments in the 1954 case. Its adherents argue the meaning of the Constitution must solely be determined by “the original public meaning of the Constitution at the time it was drafted,” and that there is a discernible correct answer to what that meaning would have been.
The theory gained popularity in the 1980s, with the late Robert Bork and Justice Antonin Scalia as two influential proponents. Scalia famously said the Constitution is “not a living document. It’s dead, dead, dead.” Today, originalism has formed the basis for decisions such as Justice Samuel Alito’s Dobbs v. Jackson Women’s Health Organization opinion overturning Roe v. Wade.
“Despite originalism’s reputation as a serious intellectual theory, it’s more like dream logic: It seems reasonable at first, but when you wake up, you can recognize it as nonsense,” Dennie writes. “Originalism deliberately overemphasizes a particular version of history that treats the civil-rights gains won over time as categorically suspect. The consequences of its embrace have been intentionally catastrophic for practically anyone who isn’t a wealthy white man, aka the class of people with exclusive possession of political power at the time the Constitution’s drafters originally put pen to paper (or quill to parchment).”
In this episode of The Modern Law Library, Dennie and the ABA Journal’s Lee Rawles discuss how conservative originalists prioritize the time period of the Founding Fathers over the Reconstruction Era that produced the Thirteenth, Fourteenth and Fifteenth Amendments. “We can’t fulfill the Reconstruction Amendments’ radical vision of full equality and freedom if we can’t be attentive to the ways in which we have been made unequal and unfree,” Dennie writes in The Originalism Trap.
While Dennie believes there are portions of the historical record that support broad civil liberty protections, she says she does not think originalism is a useful tool for progressives to use as a legal framework. 
In place of originalism, Dennie has a bold proposal: inclusive constitutionalism. “Inclusive constitutionalism means what it says: the Constitution includes everyone, so our legal interpretation must serve to make the promise of inclusive democracy real. When the judiciary is called upon to resolve a legal ambiguity or when there are broad principles at issue, the application of which must be made specific, it is proper for courts to consider how cases may relate to systemic injustices and how different legal analyses would impact marginalized people’s ability to participate in the country’s political, economic and social life.”
 Rawles and Dennie also discuss how lawyers and judges can push back against originalism; the legal rights and protections achieved by groups like Jehovah’s Witnesses and the LGBTQ+ community; why she dropped Jurassic Park references into the book; and how she keeps an optimistic outlook on the expansion of civil liberties.
“Justice for all may not be a deeply rooted tradition,” Dennie writes, “but fighting for it is.”

‘The Originalism Trap’ author wants to see originalism dead, dead, dead

Networking is something that comes naturally to some people. But if the idea of talking to strangers makes you break out into a cold sweat, there’s help and hope, says Deb Feder, author of the book After Hello: How to Build a Book of Business, One Conversation at a Time.
“You have picked a profession that is never finished meeting people,” Feder writes of lawyers. A practicing lawyer for many years, Feder now works as a business development coach.
In this episode of The Modern Law Library, Feder explains to the ABA Journal’s Lee Rawles that her goal is to help attorneys have “curious, confident conversations.” They discuss conversation stoppers v. conversation starters; how not to panic when targeting the “cool client”; and how young attorneys can get past “the kids table.”
Lining up a roster of ideal clients doesn’t start at cocktail party mingling, Feder warns. A key to building relationships with the clients you actually want to work with lies in identifying what legal work you’re looking to do, and that requires some inner work. It also involves owning your value, Feder says, and she shares a story about how a partner in her firm impressed that lesson on her when she was a young attorney.
In After Hello, she says she meets people who feel too overwhelmed by keeping up with their legal work and personal lives to contemplate business development. “How do you balance the chaos of the day and allow technology to be the support and solution, rather than part of the challenge; how do you let it serve, not destroy you?” Feder asks. She lays out strategies to organize and cope, including how to stop letting your email inbox overwhelm you.
Feder and Rawles also discuss After Hello’s “30 Conversations in 30 Days Challenge” and the most common mistakes Feder sees lawyers making on LinkedIn."

How to strike up conversations that build your book of business

From COVID-19 response to the overturning of Roe v. Wade, the results of 50 states having individual approaches to public health, medical outcomes and healthcare access raise troubling questions. A husband-and-wife team of University of Utah professors dig into the ethics of the American healthcare system in States of Health: The Ethics and Consequences of Policy Variation in a Federal System.
Leslie P. Francis is a professor of law and philosophy with a background in bioethics, and John G. Francis is a professor of political science with a focus on European comparative politics, federalism and comparative regulatory policy. The spouses had partnered on three previous books together. When looking for their next project, they decided to examine the consequences of states opting out of Medicaid expansion and what power federalism could have in protecting American citizens’ health. But soon more news events and landmark cases expanded their focus.
The result is States of Health. The book examines the tensions between state and federal powers in a number of areas, including reproductive rights; gender-affirming care; medical marijuana; public health and pandemics; right-to-try laws; patient confidentiality; and care quality and life expectancies.
In this episode of The Modern Law Library, the ABA Journal’s Lee Rawles speaks with the Francises about their collaborative writing process, and what conclusions they have drawn about the benefits of federalism and states’ rights.
The Francises argue that since it is the federal government that determines citizenship and census decisions, state differences go too far when they make “basic decisions about who counts at all, and what it means to count.” They add, “Movement is a critical aspect of who counts: the ability to come and go, or to leave one state more permanently for another.” The Francises argue that freedom of movement for the purpose of medical treatment is crucial for patients, but also point out when states control licensure for medical providers, that too can restrict freedom of movement.
The value of 50 individual laboratories of democracy can be appealing to a scientific mind. But at what point can it be argued in the healthcare space that a federal government needs to step in, if the outcomes in some of those laboratories are decreased lifespans and higher mortality?

When states’ rights and healthcare access clash

When the Trump administration's policy of separating families at the country's borders was announced, opposition from the public and the legal community was swift. The outcry and judicial decisions led to a reversal of the administration's stated policy. But detention and family separation have a long history in this country, history professor Ana Raquel Minian says.
Minian, who immigrated from Mexico to the United States right before the attacks of Sept. 11, 2001, has made an academic career studying immigration, incarceration and detention. As a young adult, Minian followed the news of Guantanamo Bay Naval Base being used to detain people who might be connected to those attacks. But in researching their new book, In the Shadow of Liberty: The Invisible History of Immigrant Detention in the United States, Minian discovered the base was first used as a detention center under President George H.W. Bush to hold Haitian refugees.
Minian uses the personal experiences of four immigrants to walk readers through the history of immigrant detention in the United States: Fu Chi Hao, a Chinese Christian attempting to escape the Boxer Rebellion in 1901; Holocaust survivor Ellen Knauff, a war bride of an American GI who arrived at Ellis Island in 1948; Gerardo Mansur, a Cuban who joined the Mariel boat lift in 1979; and Fernando Arredondo, a Guatamalan asylum seeker who was separated from his daughter by border officials in 2018.
 In this episode of The Modern Law Library, Minian shares details of these stories with the ABA Journal’s Lee Rawles. They also discuss the shifting motivations behind changes in the immigration system, parole versus detention, and how attorneys can help immigrants currently in detention.

'In the Shadow of Liberty' shines light on American immigration history

“Trespassing plus time equals adverse possession,” Paul Golden writes in his new book, Litigating Adverse Possession Cases: Pirates v. Zombies. When someone has occupied or used a piece of property as though they own it for long enough, a court could determine that they are the rightful owner—regardless of what the paperwork says. It’s a concept more popularly discussed as squatter’s rights.
In this episode of The Modern Law Library, Golden speaks with the ABA Journal’s Lee Rawles about the ancient concepts underlying modern adverse possession law; some quirky state laws; and why societies would allow land to be transferred in this way. They also discuss how the plain meaning of terms like “hostile” are changed when used in adverse possession cases, and Rawles raises a hypothetical—taken from real life—of a neighbor’s crooked fence.
During Golden’s first appearance on The Modern Law Library, he explained how the lack of a written contract could be navigated by a savvy lawyer. In his new book, Golden guides attorneys and their clients through the finer points of arguing for and against adverse possession claims. He shares some of the errors he’s seen pop up in adverse possession cases, and offers advice for how to avoid common pitfalls.
Modern Law Library listeners have been given a promotional discount code for Litigating Adverse Possession Cases: Pirates v. Zombies through May 10, 2024. For 20% off, go to the ABA’s online shop and enter LAPC2024 at checkout.

How to stop worrying and learn to love data-driven law

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