Digital Commons Network^™

Under Cloak Of Settlement, Susan P. Koniak

Faculty Scholarship

In this Article, we discuss examples of class action settlements in which the conduct allegedly engaged in by class counsel-and in some instances by the defendants and their lawyers--could constitute a civil wrong or a criminal act under state or federal law, but a court nevertheless blessed the conduct by approving the settlement. We argue that the findings made by federal and state courts in blessing these settlements, namely, findings on the adequacy of class counsel, the lack of collusion between class counsel and the defendants, and the fairness of the settlement terms, should not immunize the conduct of the …

Principled Opinions, Susan P. Koniak

Faculty Scholarship

Professor Brickman is not pleased. Indeed, he is outraged, if the sound and fury of his article is to be taken at face value. He and twenty-five others, lawyers and legal educators, sent the American bar Association Standing Committee on Ethics and Professional Responsibility (the "Committee" or "Ethics Committee") a letter (the "Letter") asking for an opinion. They got one which Professor Brickman describes as "wrong as a matter of ethics law, malevolent as a matter of public policy, disingenuous in its presentation, unfounded it [its] critical assumptions ... and blatantly self-interested in elevating lawyers' financial interests above their traditional …

Rules, Story And Commitment In The Teaching Of Legal Ethics, Susan P. Koniak, Roger C. Crampton

Faculty Scholarship

The ABA requires each "approved" law school to provide each student "instruction in the duties and responsibilities of the legal profession." First adopted in August, 1973, in the midst of the Watergate disclosures, this requirement has never been interpreted and is infrequently referred to or enforced in the accreditation process. The professional responsibility requirement is the only substantive teaching requirement imposed by the ABA.

Should the ethics teaching requirement be scrapped? We consider that question in Part I. Although we ultimately conclude the rule should be maintained, we believe this fundamental question must be asked. Given the disdain many legal …

Who Should Regulate The Ethics Of Federal Prosecutors?, Rory K. Little

Faculty Scholarship

No abstract provided.

Jewish Lawyer's Question, The Essay, Russell G. Pearce

Faculty Scholarship

Martin Buber describes the question of how to "affirm" our Jewish identity in the modem world as "the personal Jewish question, the root of all Jewish questions, the question we must discover within ourselves, clarify within ourselves, and decide within ourselves. This essay raises the "Jewish question" for lawyers. First, it explores some reasons why Jewish lawyers answer the question by separating their professional selves from their religious selves. Second, it observes that such an answer is contrary to the perspective-rooted in tradition but also common to the otherwise dissonant streams of Judaism today-that one's Judaism enters every moment of …

Union Lawyer's Obligations To Bargaining Unit Members: A Case Study Of The Interdependence Of Legal Ethics And Substantive Law, The Symposium: The Lawyer's Duties And Liabilities To Third Parties, Russell G. Pearce

Faculty Scholarship

One of the largest groups of purported nonclients to whom lawyers might have obligations are members of bargaining units represented by unions. Despite the much publicized decline of labor unions, they have almost 16.4 million members. In addition, many workers are members of bargaining units represented by labor unions, but are not union members. The relationship of union lawyers to these millions of bargaining unit members, whether members of the union or not, is unclear. An examination of how this relationship influences and is influenced by labor law offers a fascinating case study of the synergy between the substantive law …

Bork V. Burke, Thomas W. Merrill

Faculty Scholarship

I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of our society." …

Should Lawyers Obey The Law?, William H. Simon

Faculty Scholarship

At the same time that it denies authority to nonlegal norms, the dominant view of legal ethics (the "Dominant View") insists on deference to legal ones. "Zealous advocacy" stops at the "bounds of the law."

By and large, critics of the Dominant View have not challenged this categorical duty of obedience to law. They typically want to add further public-regarding duties, but they are as insistent on this one as the Dominant View.

Now the idea that lawyers should obey the law seems so obvious that it is rarely examined within the profession. In fact, however, once you start to …

Law And Ethics In A World Of Rights And Unsuitable Wrongs, Susan P. Koniak

Faculty Scholarship

Law, ethics and morality. What distinguishes these concepts? What connects them? Those are my questions. My argument is this. There is a traditional understanding of the relationship between law and ethics, and that understanding is inadequate as description. While passing as description, the traditional understanding of the relationship between law and ethics is instead normative. The normative message in the traditional understanding is worthy of examination and ripe for critique. This Article offers an alternative method of understanding the relationship between law and ethics and a normative examination of the old and new.