Law Commons^™

Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe

Articles & Chapters

The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many …

The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace

Articles & Chapters

Pro bono service is embedded in legal education and practice. Every year, lawyers and law students across the United States engage in countless hours of pro bono service. There are over 1.3 million lawyers in the country and more than one hundred thousand law students enrolled in law school. Lawyers perform an average of thirty-seven hours of pro bono work each year. They reference several factors that motivate them to perform this work but the desire to help people in need ranks highest. Professional duty is also listed as an important factor for lawyers choosing to perform pro bono work. …

Impeaching Legal Ethics, Bruce Green, Rebecca Roiphe

Articles & Chapters

In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …

Book Review: Public Legal Education - The Role Of Law Schools In Building A More Legally Literate Society (Routledge 2021), Amy Wallace

Articles & Chapters

No abstract provided.

"Man Is Opposed To Fair Play": An Empirical Analysis Of How The Fifth Circuit Has Failed To Take Seriously Atkins V. Virginia, Michael L. Perlin, Talia Roitberg Harmon, Sarah Wetzel

Articles & Chapters

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty. Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could …

When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce Green, Rebecca Roiphe

Articles & Chapters

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses the historical example to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of …

Preparing Lawyers For Practice: Developing Cultural Competency, Communication Skills, And Content Knowledge Through Street Law Programs, Ben Perdue, Amy Wallace

Articles & Chapters

Street Law is a legal education methodology designed to increase civic engagement, critical thinking skills, and develop practical legal knowledge in non-lawyers. Law students at Georgetown began using Street Law methods to teach high school classes in the 1970s. While Street Law was designed to help high school students, the programs were also crafted to provide authentic experiential opportunities for law students. However, little research had been done to measure the educational benefits for those law students. We designed the study that is featured in the article to assess those goals. We conclude that Street Law provides significant and often …

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe

Articles & Chapters

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between …

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Articles & Chapters

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa Grumet

Articles & Chapters

In all fifty states, the State Attorney General (SAG) — as the state’s chief legal officer — is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional — an action scholars describe as “nondefense” — the SAG ordinarily will disclose this decision to the public.

This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus …

Revisiting Abbe Smith's Question, "Can A Good Person Be A Good Prosecutor?", In The Age Of Krasner And Sessions, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Civility Reboot: Can Lawyers Learn To Be Nicer To One Another, Heidi K. Brown

Articles & Chapters

No abstract provided.

Pegalis & Erickson Health Law Colloquium, New York Law School

Health Law Society Publications

Examining the Intersection of Law and Bioethics in 2013.

The American legal system has played a dramatic role in shaping the field of bioethics. The dynamic intersection of law and bioethics is a fruitful area of inquiry for purposes of knowledge generation, policy making and best practices. Reflecting a diversity of perspectives, this CLE will examine the crucial connection between law and matters bioethical in 2018. The program will include a focus on clinical decision making, palliative and end-of-life care, dispute resolution, medical and social science research, and informed consent and decision making.

'Your Old Road Is/Rapidly Agin': International Human Rights Standards And Their Impact On Forensic Psychologists, The Practice Of Forensic Psychology, And The Conditions Of Institutionalization Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

An earlier version of this paper was presented as the Lynn Stuart Weiss lecture at the American Psychological Association yearly conference, sponsored by the American Psychology-Law Society and the American Psychology Foundation, August 2016, Denver, Colorado.

For years, considerations of the relationship between international human rights standards and the work of forensic psychologists have focused on the role of organized psychology in prisoner abuse at Guantanamo Bay and Abu Ghirab. That issue has been widely discussed and debated, and these discussions show no sign of abating. But there has been virtually no attention given to another issue of international human …

May Federal Prosecutors Take Direction From The President?, Bruce Green, Rebecca Roiphe

Articles & Chapters

Suppose the president sought to serve as prosecutor-in-chief telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president's direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president …

Rethinking Prosecutors' Conflicts Of Interest, Bruce Green, Rebecca Roiphe

Articles & Chapters

Conflicts of interest are endemic to almost all prosecutors’ discretionary decisions, and are the source of many instances of misconduct and abuse. Prosecutors’ decisions are riddled with complex motivations, beliefs, and interests that potentially divert them from their duty to do justice. Understood as any personal belief or interest that could interfere with the prosecutors’ ability to serve the public interest, conflicts of interest threaten to undermine the efficacy and legitimacy of the criminal justice system. The traditional regulatory system barely addresses the problem and could never effectively do so. Drawing on experimentalism, which mandates that local actors design and …

Justice, Justice Shall Ye Pursue, Honorable Jonathan Lippman

Wilf Impact Center for Public Interest Law

No abstract provided.

The Civil Legal Aid Movement: 15 Initiatives That Are Increasing Access To Justice In The United States, David Udell

Wilf Impact Center for Public Interest Law

No abstract provided.

Pro Pro Bono: Volunteer Lawyers Are An Essential Part Of Access To Civil Justice, Amy Barasch, Esq.

Wilf Impact Center for Public Interest Law

No abstract provided.

The Downside Of Disruption: The Risks Associated With Transformational Change In The Delivery Of Legal Services, Raymond H. Brescia

Wilf Impact Center for Public Interest Law

No abstract provided.

Expanding Access To Justice: Alternatives To Full Representation In New York State, Randal Jeffrey

Wilf Impact Center for Public Interest Law

No abstract provided.

Promoting Justice From The Inside: The Counseling Role Of Local Government And School District Attorneys, Lisa F. Grumet

Wilf Impact Center for Public Interest Law

No abstract provided.

Filling The Gaps: Another Way To Tackle The Access To Justice Crisis, Karen Simmons

Wilf Impact Center for Public Interest Law

No abstract provided.

Access To Justice Is More Than The Right To Counsel: The Role Of The Judge In Assisting Unrepresented Litigants, Paris R. Baldacci

Wilf Impact Center for Public Interest Law

No abstract provided.

Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear …

Can Prosecutors Be Both Coach And Referee?, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Said I, But You Have No Choice: Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context.

Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and …

Tilting At Stratification: Against A Divide In Legal Education, Rebecca Roiphe

Articles & Chapters

Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. This idea is not new. A similar proposal emerged in the early twentieth century. This article draws on the historical debate to argue that this simplistic approach cannot solve the myriad problems facing the legal profession and legal education. Supporters of separate tiers of law school rely on a caricature of the early history to argue that the Bar is acting in a protectionist way to ensure its own monopoly and keep newcomers …

Redefining Professionalism, Rebecca Roiphe

Articles & Chapters

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community …

The Attorney Signature Block On A Brief: A Jumping - Off Point For Discussing Ethics With Students, Heidi K. Brown

Other Publications

No abstract provided.