Legal Talk Network

It’s time for the Modern Law Library’s summer recommendations episode, in which host Lee Rawles shares her pop culture picks with you, plus a re-airing of one of our older episodes with current relevance.

This year, that episode is our 2018 interview with Kathryne M. Young about How to Be Sort of Happy in Law School. Young used her background in sociology to gather data from students, alumni, faculty and law-school dropouts on their experiences during and after law school. Based on her findings—and her own experiences as a law student and professor—she offers advice on protecting your mental health; choosing courses and activities to pursue; managing the practical aspects of your household and budget; and forming relationships with mentors and peers. She also discusses how to decide when if it’s time to leave law school altogether.

Rawles also shares some favorites from what she’s been reading, watching and listening to since our 2022 year-end pop culture picks episode.

If you have your own favorite reads so far in 2023, send your recommendations to [email protected] with a brief description, and we may choose to highlight them on our social media.

For decades, lawyers who worked in BigLaw could expect some version of the following: Work long hours, including nights and weekends, with minimal free time, giving up almost all semblances of a social life. The reward: money and a potential partnership. And if you didn’t like it, there was the door. And if you were having mental health or wellness issues, then suck it up and deal with it.

The year was 1961. Freshly minted attorney James J. Brosnahan had been on the job as a federal prosecutor in Phoenix for two days when he was handed his first trial: a capital murder case. Twelve days into the job, he’d won his first jury trial, and caught the trial bug. (Though to his relief, the two young defendants escaped the death penalty.) For the next six decades, Brosnahan chased every opportunity to present to a jury, in both civil and criminal court.

In his new memoir, Justice at Trial: Courtroom Battles and Groundbreaking Cases, Brosnahan selected 19 of the more than 150 cases he brought before a jury. Each case reflects an issue he sees as being critical to current cultural events, and he feels the losses are as important to share as the victories. He’s fought for press freedom, a woman’s religious right to give sanctuary to undocumented migrants, and for a female corporate chairperson unfairly targeted because of her gender. His international experiences include trying to prevent a client from being framed by dictator Ferdinand Marcos of the Philippines, and fighting for justice for assassinated lawyers in Northern Ireland.

In this episode of the Modern Law Library, Brosnahan shares some of these stories with the ABA Journal’s Lee Rawles, elaborating on the most important lessons he’s learned about juries, offering tips for aspiring litigators, and sharing what it was like to be Ruth Bader Ginsburg’s classmate at Harvard Law.

As stories of some CEOs' outrageous behaviors continue, the amount of activist shareholder activities keeps growing, say Kenneth Mantel and Megan Reda, partners at Olshan Frome Wolosky in New York. They represent investment funds, family offices and people trying to bring change at public companies—and maybe get a seat on the board.

Jane M. Spinak did not set out to write a book arguing for the abolition of family court. She thought she would be making the case for a set of sensible reforms. But the more she dug into the history of the family court system, the previous attempts at reform, and the examples of real world harms the system had caused, the more she began to believe there was no saving it.

In this episode of the Modern Law Library, Spinak speaks with the ABA Journal’s Lee Rawles about her philosophical journey and the writing of her new book, The End of Family Court: How Abolishing the Court Brings Justice to Children and Families.

Spinak walks Rawles through the origins of the family court system at the turn of the 20th century. The movement began with Northern and Midwestern progressives, usually white middle- and upper-class women, who felt there needed to be a way to make the children of recent immigrants into “real Americans.” They also believed, as Spinak does, that adult court was not a place for juvenile offenders.

Over the next century, the purpose and purview of family courts expanded and changed. Today, family court judges may consider juvenile criminal offenses, status offenses, custody cases, adoption, the removal of children from their parents and truancy cases. What has remained constant is the uneven enforcement of child safety laws, which fall primarily on poor and minority families.

“It is doubtless true that many children of the well-to-do are saved from coming before the courts because their families have greater resources and are often able to obtain special care for their children,” reads a report from the Children’s Bureau in the 1930s cited in The End of Family Court. “Whereas the children of the poor are more likely to be referred to courts or committed to institutions when they develop serious behavior problems.”

In this episode, Spinak shares experiences from her four decades in the family law arena, discusses how the children and families impacted by family court are leading movements for change, and explains how family court jurisdictions could shrink as communities step up to support families.

When technologically assisted review first started gaining traction in e-discovery in the 2010s, many of the same superlatives assigned to ChatGPT were used to describe this groundbreaking new process that purported to review documents faster and more accurately than humans. Lawyers would get hours and hours of time back, and clients would save tons of money.

“If you don’t have it in writing, you’re out of luck.” That’s the common wisdom you’ll hear from TV judges, helpful uncles, well-meaning friends and even lawyers in your life. But while getting an agreement in writing is a best practice, in some cases you—or your clients—might have more options than you think to enforce a unwritten agreement.

While the foundational principle of the Statute of Frauds holds that contracts must be written and signed to be enforced, there is a tool to create an exception. This tool is laid out in detail by Paul Golden in his new book, Litigating Constructive Trusts: The Last Resort in Fighting Inquity and Inequity. Golden, who has extensive experience in real estate and trust and estate law, believes far too few attorneys are aware of the potential benefits of constructive trusts.

In this episode of the Modern Law Library, Golden explains the concept of a constructive trust to the ABA Journal’s Lee Rawles. A constructive trust is a “legal fiction,” where (broadly speaking) a judge decides that between two parties with a relationship where trust could be assumed, there has been an egregious betrayal of that trust and an unjust enrichment to the betrayer. The judge can then retroactively declare that even without a written contract, a defendant had a fiduciary duty to the victim, and victim’s property must be returned to them.

“Traitorous partners, gold-digging girlfriends, old ladies being tricked out of preparing a fair will, and plain old murder,” writes Golden in the book. “These have been, and will continue to be, the subjects of constructive trusts. The facts in some constructive trust cases are so outrageous, one often feels like a voyeur, but without the shame.”

Golden explains the special benefits of a constructive trust, as well as defenses that can be made if your client is the subject of a constructive trust claim. Different jurisdictions have different standards for constructive trusts, and Golden and Rawles discuss the state of New York’s 4-prong test in detail. Most constructive trusts are based on case law, but some states do have civil code about them. Golden offers advice to lawyers looking to use a constructive trust argument, and lists common trial issues they might face, including how to convince a judge they have the power to act to avert a deep injustice from continuing.

Winning a 2003 landmark U.S. Supreme Court case expanded a gay lawyer's Supreme Court practice, he says, and looking back, it's his favorite case.

Because Paul M. Smith was the editor-in-chief of the Yale Law Journal, clerked for then-U.S. Supreme Court Justice Lewis F. Powell Jr. and handled various Supreme Court cases—including for paying clients—many thought that it made sense for the Washington, D.C., lawyer to argue Lawrence v. Texas, which led to a 2003 landmark opinion that struck down state laws criminalizing sexual conduct between consenting adults of the same gender.

As Michelle Browning Coughlin, of counsel at ND Galli Law in Louisville, Kentucky, was raising her two daughters, she wanted her kids to understand what lawyers do. She worried that children only knew the type of lawyers who commonly appeared in courtrooms on television shows.

In the United States, there has been very little movement toward establishing a regulatory framework at the federal level for artificial intelligence. Why is that?

ChatGPT, the large language model released by OpenAI, is one of several such tools that have revolutionized the legal industry in a short amount of time, igniting debates about whether artificial intelligence has to be regulated—and by whom. The European Union recently took the first step toward passing the AI Act, whereby regulation would increase in proportion with the potential threat to privacy and safety that an AI system poses. China has also drafted rules to regulate AI.