Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Dispute resolution (3)
- Professional responsibility (3)
- AALS (2)
- ABA (2)
- Accreditation (2)
-
- Advertising (2)
- American Bar Association (2)
- Association of American Law Schools (2)
- Children (2)
- Criminal (2)
- Criminal law (2)
- Employment (2)
- Employment statistics (2)
- IBR (2)
- Income-based repayment (2)
- Law school marketing (2)
- Lawyering (2)
- Legal ethics (2)
- Legal responsibility (2)
- NALP (2)
- National Association for Law Placement (2)
- Responsibility (2)
- Rule 8.3 (2)
- Rule 8.4(c) (2)
- Salaries (2)
- Scholarships (2)
- U.S. News (2)
- Administration (1)
- Advocacy (1)
- Attorney advertising (1)
Articles 1 - 18 of 18
Full-Text Articles in Law
What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy
What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy
Faculty Publications
For years, criminal defense lawyers and commentators have wrestled with thorny ethical and legal issues surrounding defense counsel's obligations with respect to handling items of physical evidence. Commentators have usually focused on the question of whether the lawyer should take possession of physical evidence of a crime as well as on counsel's obligations and options once the lawyer purposively or inadvertently comes into possession of such evidence. After discussing what the ethics rules and the law require concerning handling physical evidence, commentators have generally cautioned lawyers not to take possession of suspected contraband or possible evidence of a crime, except …
Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy
Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy
Faculty Publications
In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …
Law School Marketing And Legal Ethics, Ben L. Trachtenberg
Law School Marketing And Legal Ethics, Ben L. Trachtenberg
Faculty Publications
Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics — especially those concerning the employment outcomes of law graduates — in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit. This article exposes how pitches aimed at …
Regulators, Mount Up, Ben L. Trachtenberg
Regulators, Mount Up, Ben L. Trachtenberg
Faculty Publications
Since I began circulating drafts of an article arguing that certain law school officials have exposed themselves to professional discipline by engaging in dishonest marketing tactics, responses have varied considerably. Everyone seems to agree, however, that law school officials should not lie in their pursuit of students. There also appears to be broad consensus that misleading (albeit not intentionally false) marketing—such as systematically skewed salary statistics—is an unfortunate phenomenon, although disagreement remains on just how serious a problem it is and what level of corrective effort is appropriate. In their recently-published response pieces, Kyle McEntee of Law School Transparency (“LST”) …
Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams
Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams
Faculty Publications
In a recent high-profile prosecution, the federal district court criticized defense counsel for filing a post-trial brief that copied passages from previously published material without attribution. The court followed other recent decisions that, since about 2000, have chastised lawyers for briefs marked by plagiarism. Some lawyers had copied passages from earlier judicial opinions that rest in the public domain, and some lawyers (as in the recent prosecution) had copied passages from private sources that are subject to the copyright laws. In either event, courts have labeled lawyers’ plagiarism “reprehensible,” “intolerable,” “completely unacceptable,” and “unprofessional.”
Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande
Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande
Faculty Publications
Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …
Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten
Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten
Faculty Publications
Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …
Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton
Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton
Faculty Publications
Federal efforts beginning in the 1990's have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children …
Responsibility Status Of The Psychopath: On Moral Reasoning And Rational Self-Governance, Paul J. Litton
Responsibility Status Of The Psychopath: On Moral Reasoning And Rational Self-Governance, Paul J. Litton
Faculty Publications
This article does not aim to describe the opposing views and argue for one over the other. Rather, I propose to deflate the debate as far as possible, attempting to reduce the area of disagreement. Meaningful disagreement exists only if there are, or could be, agents who have an undiminished capacity for practical reasoning or rational self-governance, yet truly are incapable of moral reasoning. However, I suggest that the capacity for rational self-governance entails the capacity to comprehend and act on moral considerations; thus, to the extent that an individual truly is incapable of grasping moral reasons, we should expect …
Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton
Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton
Faculty Publications
Federal efforts beginning in the 1990's have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children …
Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Lidsky, Tera Peterson
Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Lidsky, Tera Peterson
Faculty Publications
Florida has been one of the most aggressive states in regulating attorney advertising. The Florida Supreme Court recently adopted new and more stringent rules regulating broadcast advertising by attorneys, and the court appears poised to adopt new and more stringent rules governing Internet advertising by attorneys. As this Article details, the problem is that Florida's new and proposed rules violate both the First Amendment and sound public policy principles. This Article provides guidance to states contemplating further regulation of attorney advertising, and it indirectly critiques current commercial speech doctrine.
On Misjudging And Its Implications For Criminal Defendants, Their Lawyers And The Criminal Justice System, Rodney J. Uphoff
On Misjudging And Its Implications For Criminal Defendants, Their Lawyers And The Criminal Justice System, Rodney J. Uphoff
Faculty Publications
Unquestionably, judges misjudge. Even the most arrogant of judges ultimately will concede that all judges err and, at some point, fail to apply governing law to the facts of the case accurately. Although all might agree that judges err, not all judges, lawyers, and scholars agree on how judges should behave or on what constitutes good judging. Not surprisingly, they also disagree about misjudging and the frequency with which it occurs.In his provocative article Misjudging, Chris Guthrie contends that “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.” Based on my observations and …
The 'Abuse Excuse' In Capital Sentencing Trials: Is It Relevant To Responsibility, Punishment, Or Neither?, Paul J. Litton
The 'Abuse Excuse' In Capital Sentencing Trials: Is It Relevant To Responsibility, Punishment, Or Neither?, Paul J. Litton
Faculty Publications
The violent criminal who was a victim of severe childhood abuse frequently appears in the responsibility literature because he presents a difficulty for theorists who maintain the compatibility of causal determinism and our practices of holding persons responsible. The challenge is based on the fact that learning about an offender's horrific childhood mitigates the indignation that many persons feel towards him, possibly indicating that they hold him less than fully responsible. Many capital defendants present evidence of suffering childhood abuse, and many jurors find this evidence to count against imposing death. The most obvious explanation for a response like this …
Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande
Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande
Faculty Publications
This article assesses the possibilities for collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualification agreement (DA), which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach. Under CL theory, the process creates a metaphorical "container" by using a DA disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-based …
Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John M. Lande
Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John M. Lande
Faculty Publications
This article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining important interests of key stakeholder groups, including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their …
Statement Before The United States House Of Representatives Concerning Charitable Choice And The Community Solutions Act , Carl H. Esbeck
Statement Before The United States House Of Representatives Concerning Charitable Choice And The Community Solutions Act , Carl H. Esbeck
Faculty Publications
First, charitable choice imposes on both government and participating faith-based organizations (FBOs) the duty to not abridge certain enumerated rights of the ultimate beneficiaries of these welfare programs. Second, the statute imposes on government the duty to not intrude into the institutional autonomy of faith-based providers. Third, the statute reinforces the government's duty to not discriminate with respect to religion when determining the eligibility of private-sector providers to deliver social services.
Allocation Of Decisionmaking Between Defense Counsel And Criminal Defendant: An Empirical Study Of Attorney-Client Decisionmaking, Rodney J. Uphoff
Allocation Of Decisionmaking Between Defense Counsel And Criminal Defendant: An Empirical Study Of Attorney-Client Decisionmaking, Rodney J. Uphoff
Faculty Publications
In Commonwealth v. Woodward, the highly publicized murder trial of an au pair accused of killing an infant in her care, the defense team faced a strategic decision commonly encountered at trial: whether to request or to object to lesser included jury instructions. Put simply, the Woodward defense team had to decide whether to ask for an instruction that would permit the jury to return a manslaughter verdict, or to object to such an instruction, leaving the jury only the choice either to acquit the defendant or to convict her of second degree murder as charged in the indictment. Undoubtedly …
Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger
Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger
Faculty Publications
Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend …