Digital Commons Network^™

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A …

Lost And Found: David Hoffman And The History Of American Legal Ethics, Michael S. Ariens

Faculty Articles

David Hoffman was a successful Baltimore lawyer who wrote the first study of American

law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A …

The Agony Of Modern Legal Ethics, 1970–1985, Michael S. Ariens

Faculty Articles

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

The Lawyer Bubble: A Profession In Crisis, By Stephen J. Harper (Book Review), Michael S. Ariens

Faculty Articles

Stephen J. Harper’s The Lawyer Bubble: A Profession in Crisis, is the latest iteration of the “institutional failure” or “business disaster” story. A number of such books were published around 1990, and have been quite popular since then, for businesses (such as Enron and Tyco) keep failing in such spectacular fashion. The Great Recession that began in December 2007 led to another round of business disaster books, and like their forebears these books make a hard sell for the claim that the disaster was of a titanic nature. And where the business disaster book is found, the legal disaster book …

Teaching American Legal History Through Storytelling, Michael S. Ariens

Faculty Articles

Distinct from facts and truths, the power of storytelling can serve as a method of teaching American Legal History. A course in American Legal History can facilitate discussion into whether the rule of law has been the rule or exception in the history of American law. Integral to this overarching story are three storylines that surface throughout the course: the development of law in American political history; the ideological underpinnings of legal doctrine development; and the rise and decline of different approaches to legal thought and their effect on legal education.

The course begins with a chronological overview of the …

“Playing Chicken": An Instant History Of The Battle Over Exceptions To Client Confidentiality, Michael S. Ariens

Faculty Articles

The purpose of my essay Playing Chicken: An Instant History of the Battle over Exceptions to Client Confidentiality, is to offer a pointillist history of the recent battles between the ABA and the federal government concerning 1) when lawyers may or must disclose client confidences, and 2) claims that the federal government is attacking the attorney-client privilege. In doing so, I hope to explain how this battle is representative of the current drift in the American legal profession.

After the Introduction, the essay unfolds as follows: Section II traces the ABA’s often schizophrenic understanding of the duty of confidentiality and …

American Legal Ethics In An Age Of Anxiety, Michael S. Ariens

Faculty Articles

The thesis of my article, “American Legal Ethics in an Age of Anxiety,” is that the historical development of American legal ethics was regularly accompanied by an anxiety within the profession. In general, I suggest the legal profession’s understanding of its ethical precepts has been molded and reshaped during periods of professional anxiety. The profession’s understanding of legal ethics changed dramatically during various crises in the 19th century, exemplified by the different approaches taken by David Hoffman in the mid-1830s, George Sharswood in the mid-1850s, and David Dudley Field in the early 1870s. In each case, however, the triggering event …

What Hath Faith Wrought? (Book Review), Michael S. Ariens

Faculty Articles

A number of academic lawyers have explored the relationship of religion (and religious belief) and law. Ostensibly starting with the late Harold Berman’s The Interaction of Law and Religion, the “religious lawyering” movement evaluates the role religious faith has in how lawyers practice law. Extended by subsequent works such as Christian Perspectives on Legal Thought, the discussion has expanded beyond the question whether a religious lawyer is a contradiction.

This essay serves as a commentary on Robert F. Cochran’s Faith and Law: How Religious Traditions from Calvinism to Islam View American Law, a compilation of sixteen essays from legal academics …

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21, Michael S. Ariens

Faculty Articles

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century.

Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

The Ethics Of Copyrighting Ethics Rules, Michael S. Ariens

Faculty Articles

The American Bar Association’s (“ABA”) practice of requiring students to purchase the Model Rules of Professional Conduct is exploitative and unethical. The ABA uses its role in training lawyers to create a situation which all but requires law students and bar applicants to purchase the organization’s own Model Rules. The fact that the Model Rules constitute a substantial revenue stream for the ABA is due less to lawyers’ desire to brush up on Model Rules of Professional Conduct, which are not laws, than to the ABA's direct role in approving law schools and its indirect role in licensing lawyers.

Law …

Law School Branding And The Future Of Legal Education, Michael S. Ariens

Faculty Articles

It is too early to determine if law school branding will have a positive or a negative effect on legal education. A recent shift in legal education has led law schools to consciously brand themselves, claiming an educational distinctiveness in selling their services to consumers. Branding is an attempt to create a desire in targeted prospective students to join the branded law school. Although a law school may brand itself by claiming it delivers an excellent legal education, branding is about distinctiveness, not quality. Law schools have used a number of approaches to attract students, including aggressive marketing of a …

A Short History Of Hearsay Reform, With Particular Reference To Hoffman V. Palmer, Eddie Morgan And Jerry Frank, Michael S. Ariens

Faculty Articles

Much of the history of the American law of evidence, including its most contentious issue, hearsay, is the story of stasis and reform. The case of Hoffman v. Palmer represents one of few cases concerning hearsay known by name, and illustrates that “false” evidence has often been used to caution against efforts proclaiming “radical reform” of the law of evidence.

In this case involving a collision between a car and a train, the critical question was: Is the defendant railroad permitted to introduce into evidence the transcript of a question and answer session made two days after the accident between …

Wouldn’T You Like To Be An Expert, Too?, Michael S. Ariens

Faculty Articles

It was once an open secret among lawyers that finding an expert to testify on your client’s behalf was one of the easiest aspects of litigating. Lawyers not in possession of private lists of experts easily located persons willing and able to sell their expertise in the back pages of the state bar journal, in advertisements in legal newspapers, and in direct mail appeals from companies whose business is selling expertise. One consequence was that the phrase “a battle of the experts” came about, and people began referring to both lawyers and experts as “hired guns.” Another consequence was a …

Know The Law: A History Of Legal Specialization, Michael S. Ariens

Faculty Articles

Legal specialization is an unexceptional aspect of the profession of law because specialization and concentration are expected of lawyers. There has been a transformation in lawyers’ understanding of the reasons justifying their position in society and, therefore, a transformation in their understanding of what it means to be a “professional.” The ideological reasons for this transformation include: (1) the influence of the ABA in promulgating and proselytizing specialization standards; (2) a continuing insistence by the legal profession of the importance of the idea of a unified bar; (3) the large increase in size and influence of the legal academy, consisting …

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …

Modern Legal Times: Making A Professional Legal Culture, Michael S. Ariens

Faculty Articles

Lawyers’ belief in their professionalism was fostered by the creation and development of modern legal institutions. Law schools, bar associations, organizations like the American Law Institute, as well as the system of legal directories, the regional case reporter system, and continuing legal education groups all contributed greatly to the making of a distinctly professional culture of law in America. These institutions prospered in part because of their ideological fit with the professionalizing ethos embodied in Christopher Columbus Langdell’s statement that “law is a science.”

Legal institutions, then, must be evaluated through the ideological lens which encouraged and fostered the notion …

Evidence Of Religion And The Religion Of Evidence, Michael S. Ariens

Faculty Articles

When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim. Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good. However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional. In light of this inherent difficulty of evidence of religion, …

Progress Is Our Only Product: Legal Reform And The Codification Of Evidence, Michael S. Ariens

Faculty Articles

Twentieth century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a "rational" resolution of disputes.

Morgan’s decision to emphasize the rational resolution of disputes …

The Law Of Evidence And The Idea Of Progress, Michael S. Ariens

Faculty Articles

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view. However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs. What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter.

Consideration of these aspects of evidence law …

Dutiful Justice (Book Review), Michael S. Ariens

Faculty Articles

Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditional biography of one of the most important public figures in the United States since the Civil War.

Although the author disclaims it, Honorable Justice is a defense of Holmes. Novick writes of some of Holmes’ faults, but too often Holmes’ human imperfections are defended as strengths. It appears that Novick was trying hard to defend Holmes from late twentieth century critiques. This defense of Holmes seems a misguided attempt to re(de)ify Holmes to a group of readers which will likely include a large proportion of skeptical, …

Just A Bigger Fish (Book Review), Michael S. Ariens

Faculty Articles

Shark Tank: Greed, Politics, and the Collapse of Finley, Kumble, One of America’s Largest Law Firms is a non-fiction potboiler written by Kim Isaac Eisler. The story is generally about the decline and fall of an institution instrumental to capitalism that prospered during much of the 1980s. In particular, it is about the decline and fall of men whose hubris and greed make the decline and fall so satisfying to read.

While it would be easy to dismiss the demise of Finley, Kumble, because it was not an old, established “white shoe” law firm, or to analogize it to the …

The Politics Of Law (Teaching) (Book Review), Michael S. Ariens

Faculty Articles

The satiric novel, as a “message” novel, can provide unvarnished truths about the object of satire. Institutions of higher learning, particularly law schools, and the denizens of those institutions, are prime subjects for satire because they take themselves so seriously. Unfortunately, though, The Socratic Method by Michael Levin takes itself as seriously as the law school it is criticizing.

One of the hazards of the satiric novel is that the message may overwhelm the plot and characterization. Levin, in his zeal to awaken the reader to the torture of the law school, and particularly the torture of the law school …

Suicidal Rights, Michael S. Ariens

Faculty Articles

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual.

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual …

Mueller V. Allen: A Fairer Approach To The Establishment Clause, Michael S. Ariens

Faculty Articles

The decision upheld by the United States Supreme Court in Mueller v. Allen helds a new dawn in establishment clause jurisprudence. This five-to-four decision, written for the majority by Justice Rehnquist, upheld a Minnesota statute permitting taxpayers to deduct the tuition, textbook, transportation, and instructional material expenses of their children when calculating their state tax liability. By this decision, the Court has cleared the way for an accommodation between church and state that more equitably recognizes the principles and values that the religion clauses were intended to protect.

Following a review of the history of the establishment clause, tuition tax …