Law Commons^™

Attorneys As Gatekeepers: Sec Actions Against Lawyers In The Age Of Sarbanes-Oxley, Lewis D. Lowenfels, Alan R. Bromberg, Michael J. Sullivan

ExpressO

Following the enactment of the Sarbanes-Oxley Act on July 30, 2002, the Securities and Exchange Commission has substantially increased the number of actions it has initiated against lawyers. And a substantial number of these recent SEC actions against counsel to public companies (both internal and external) have highlighted the SEC’s resolve to hold lawyers accountable for not performing adequately their SEC-conceived role as “gatekeepers” to prevent fraud and other violations of the federal securities laws. This “gatekeeper” concept has been and is being implemented through SEC actions addressing a wide variety of alleged transgressions in a wide diversity of factual …

Law In The Digital Age: How Visual Communication Technologies Are Transforming The Practice, Theory, And Teaching Of Law, Richard K. Sherwin, Neal Feigenson, Christina Spiesel

ExpressO

Law today has entered the digital age. The way law is practiced – how truth and justice are represented and assessed – is increasingly dependent on what appears on electronic screens in courtrooms, law offices, government agencies, and elsewhere. Practicing lawyers know this and are rapidly adapting to the new era of digital visual rhetoric. Legal theory and education, however, have yet to catch up. This article is the first systematic effort to theorize law's transformation by new visual and multimedia technologies and to set out the changes in legal pedagogy that are needed to prepare law students for practice …

When The Inquisitorial And Adversary Systems Collide: Teaching Trial Advocacy To Latin American Lawyers, Leonard L. Cavise

ExpressO

"When the Inquisitorial and Adversary Systems Collide: Teaching Trial Advocacy to Latin American Lawyers" The first part of the article reviews the principal differences in the two systems as it affects trial procedure. The article then reviews those aspects of accusatorial trial proceedings that caused the greatest degree of discomfort to the foreign lawyers. Finally, the article attempts to posit a few recommendations that should help not only to ease the transition process but also to anticipate the next level of procedural and substantive obstacles.

Legal Doubletalk And The Concern With Positional Conflicts: A “Foolish Consistency”?, Helen A. Anderson

ExpressO

This article explores the question whether lawyers should be able to argue both sides of a legal issue is unrelated cases. Today the ABA and many state bar associations caution against so-called “positional conflicts,” analyzing them as potential conflicts of interest under a multi-factor test. This relatively recent concern misses the real potential for harm: it is precisely when a lawyer decides not to make a contradictory argument for one client in order not to offend or harm another client that an ethical problem is likely to be present. A positional conflict is therefore evidence that any pressure to modify …

Law As Rationalization: Getting Beyond Reason To Business Ethics, Jeffrey Marc Lipshaw

ExpressO

Embedded in the way we use the law is the tendency of human reason to justification, in the words of one philosopher, “the thirst for rationality that creates lies.” I contend that this tendency is exacerbated by the conflation of what is knowable as a matter of science, and that which we might believe is normative. I rely on Kant’s critique of theoretical and practical reason to assess claims to objectivity in social science approaches to law, and to suggest it is not surprising that the operation of theoretical and practical reason would tend to the conflation of the descriptive …

Implementation Of Sarbanes-Oxley: New Rules For Lawyers And What Lawyers Think, Olga Yevglevskaya-Wayne

ExpressO

This paper discusses practical implications of Sarbanes-Oxley for lawyers. Emphasis is on the new federal rules of professional responsibility the Act sets up. The paper includes the views of various renowned practitioners interpreting and using these rules. The paper also contains suggestions for how the Securities and Exchange Commission could potentially improve those areas that are proving problematic for attorneys so as to better effectuate the purpose of this major new law, in light of its legislative history and intent, which are also discussed in the paper.

What's In A Name?: Cause Lawyers As Conceptual Category, Corey S. Shdaimah

ExpressO

Stuart Scheingold's and Austin Sarat's "Something to Believe In: Politics, Professionalism, and Cause Lawyering," (Stanford University Press, December 2004) draws on a decade of empirical and theoretical work on cause lawyering. Scheingold’s and Sarat’s law and society scholarship contributes to our knowledge of lawyering, the law, work with clients and social movements, and the interplay between what Ewick and Silbey have called "legality" and the social world. Their cross-disciplinary work makes a significant contribution to the social sciences as well as to the field of legal studies. This review examines the utility of cause lawyering as a concept that contributes …

Some Preliminary Statistical, Qualitative, And Anecdotal Findings Of An Empirical Study Of Collegiality Among Law Professors, Michael L. Seigel

ExpressO

This article is an empirically-based follow-up to a piece I published last year in the Journal of Legal Education entitled, On Collegiality, 54 J. Legal Educ. 406 (2004). It provides insight into the process of conducting empirical research and sets forth some preliminary – yet very intriguing – data and qualitative information gleaned from a survey responded to by more than 1200 law professors nationwide. The survey addressed a wide range of topics related to collegiality and job satisfaction in the legal-academic profession.

Readers' Expectations, Discourse Communities, And Writing Effective Bar Exam Answers, Denise D. Riebe

ExpressO

This article advocates that law schools should provide bar exam preparation for students, including instruction regarding effective writing for bar exams. Using the reader expectation approach and considering the unique conventions of the legal profession's discourse community as a theoretical backdrop, this article examines effective writing for bar exams. It also provides practical recommendations for instructing students to write effective bar exam answers.

Good Faith In The World Of Delaware Corporate Litigation: A Strategic Perspective On Recent Developments In Fiduciary Duty Law, Zachary S. Klughaupt

ExpressO

The Delaware Chancery’s new-found willingness to hold corporate directors accountable for breaching the duty of good faith has provoked widespread attention in both the business and legal communities. Legal practitioners and scholars recognize the novelty of Delaware’s recent good faith jurisprudence, as well as its potential to expose directors to gigantic personal damage awards, and in fact have published numerous articles that seek to delimit the boundaries of good faith conduct. But until now, most discussions of good faith as a fiduciary duty have approached the subject as an abstract measure of conduct, showing little regard for how a complaint …

Internationalizing U.S. Legal Education: A Report On The Education Of Transnational Lawyers, Carole Silver

ExpressO

This article analyses the role of U.S. law schools in educating foreign lawyers and the increasingly competitive global market for graduate legal education. U.S. law schools have been at the forefront of this competition, but little has been reported about their graduate programs. This article presents original research on the programs and their students, drawn from interviews with directors of graduate programs at 35 U.S. law schools, information available on law school web sites about the programs, and interviews with graduates of U.S. graduate programs. Finally, the article considers the responses of U.S. law schools to new competition from foreign …

Organizational Form As Status And Signal, Kimberly D. Krawiec

ExpressO

In this Article, the author analyzes the reactions of 147 New York City law firms to the 1994 enactment of the New York Limited Liability Partnership statute, which provided New York law firm partners with the first convenient mechanism to limit their personal liability for partnership debts. Using both quantitative and qualitative evidence, she evaluates whether the behavior of New York law firms supports the signaling theory of organizational form—that is, the theory that firms use the partnership form to signal to the marketplace that they provide high quality legal services, due to either superior monitoring or to profit sharing. …

Lawyers And Learning: A Metacognitive Approach To Legal Education, Anthony S. Niedwiecki

ExpressO

The article discusses how the current methods of teaching law students hinder their ability to transfer the knowledge and skills learned in law school to the practice of law. I propose integrating learning theory into the law school curriculum, with a specific focus on teaching metacognitive skills. Generally, metacognition refers to having both an awareness of and control over one’s learning and thinking. Professors can help the students gain an awareness of their learning by focusing the students on which learning preferences and experiences they bring to law school and how they can match them to the skills required of …

Collaboration And Modeling: Reconsidering "Non-Directive" Orthodoxy In Clinical Legal Education, Harriet N. Katz

ExpressO

Clinical legal education scholarship has primarily emphasized “nondirective” supervision of law students by lawyer supervisors, although some scholars have contended that other supervision methods may be helpful for some students and a few have contended that the method of supervision was not critical to student learning. Externship supervision provides examples of a varied repertoire of supervision methods that may be applicable to on-campus clinics as well, depending on the educational goals of the clinic. Student views of the teaching value of supervision they experienced in externship at the author’s law school support the view that collaboration and modeling, as well …

Who Are The Good Guys? The Legacy Of Watergate And The Tangled Webs We Weave, Jeffrey A. Breinholt

ExpressO

This article examines the astounding revelation that Deep Throat, the anonymous source that brought down the Nixon Presidency, was Mark Felt, the man who ran the FBI during the Watergate Scandal. Was Mark Felt a hero or a villain? Thanks to the recent publication of Bob Woodward’s The Secret Man in combination with historical case law, we now have more historical evidence about what motivated Felt and how he reacted to his own legal misfortunes. This article examines this record and shows that categorizing Felt along the hero/villain continuum is not an easy task, but argues that this type of …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The Lawyer As A Portfolio Manager: How Does The Fee System Influence On The Lawyer's Decision Of Handling Legal Claim?, Christian At, Nathalie Chappe

ExpressO

We use the portfolio theory to analyze the lawyer's decision regarding the type of case the lawyer will handle. We offer some insights into the widespread idea that contingency lawyers are providing a risk sharing service. We demonstrate that a contingent fee lawyer diversifies his portfolio. We show that reputation induces more, but not fully, concentration, since a lawyer with greater reputation or expertise selects more risky cases. The size of the law firm has the same result.

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

ExpressO

Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …

The Legal Employment Market: Determinants Of Elite Firm Placement, And How Law Schools Stack Up, Anthony M. Ciolli

ExpressO

Data collected on 15,293 law firm associates from 1295 employers who graduated from law school between 2001 and 2003 were used to develop a “total quality score” for every ABA-accredited law school, both nationally and for nine geographic regions. Quantitative methods were then used to identify factors that help explain the variation in a law school’s national career placement success at elite law firms. The findings revealed that while a law school’s academic reputation is the single biggest predictor of placement, several other factors were also highly significant. Differences in grading system, class rank disclosure policies, and the number of …

Reports Of Batson's Death Have Been Greatly Exaggerated: How The Batson Doctrine Enforces A Normative Framework Of Legal Ethics, Laura I. Appleman

ExpressO

In this article, I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer’s professional responsibility. Accordingly, using legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. Batson’s ethical imperative affects the norms of the legal profession itself. By fostering a non-discrimination …

The Ethics Of Cause Lawyering: An Examination Of Criminal Defense Lawyers As Cause Lawyers, Margareth Etienne

ExpressO

Criminal defense attorneys are often motivated by an intricate set of moral and ideological principles that belie their reputations as amoral (if not immoral) “hired guns” who would do anything to get their guilty clients off. Using empirical data from interviews with forty criminal defense attorneys I explore the motivations that inform their decisions to enter the field of criminal defense and the values that influence the manner in which they do their jobs. I conclude that many criminal defense attorneys are in fact cause lawyers who are committed to individual clients but also the “cause” of legal reform in …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

The Economics Of Limited Liability: An Empirical Study Of New York Law Firms, Scott Baker, Kimberly D. Krawiec

ExpressO

Since the rapid rise in organizational forms for business associations, academics and practitioners have sought to explain the choice of form rationale. Each form contains its own set of default rules that inevitably get factored into this decision, including the extent to which each individual firm owner will be held personally liable for the collective debts and obligations of the firm. The significance of the differences in these default rules continues to be debated. Many commentators have advanced theories, most notably those based on unlimited liability, profit-sharing, and illiquidity, asserting that the partnership form provides efficiency benefits that outweigh any …

A Cloak For The Bare: In Support Of Allowing Prospective Malpractice Liability Waivers In Certain Pro Bono Cases, Steve Berenson

ExpressO

No abstract provided.

The Ethics Of The Adversary System, Greg S. Sergienko

ExpressO

This article considers many commonly advanced criticisms of the adversary system. It provides an analytic framework that includes the likely results of changed ethical rules and that distinguishes and analyzes separately two different possible goals of the system, seeking the truth and promoting justice. The article is also unusual in the range of supporting materials that it synthesizes, which includes contributions from economic theory, psychological studies, philosophy, and traditional legal ethics.

The article concludes that changes in ethical codes meant to increase lawyers' duty to promote the truth will have a perverse result, decreasing the accuracy of litigation. This will …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

Gentleman's Agreement: The Antisemitic Origins Of Restrictions On Stockholder Litigation, Lawrence E. Mitchell

ExpressO

A deeply ingrained, seemingly ineradicable, hostility to plaintiffs’ lawyers and especially to plaintiffs’ lawyers in stockholder suits seems to have existed for most of the past century. This hostility is manifest not only in the tone of judicial opinions but in law review articles, the popular press, and, often, in legislation. This article analyzes the circumstances under which the first security-for-expense statute was adopted in New York in 1944, including the contemporaneous justification for the statute, focusing on the demographics of the New York bar at the time and the ethnic sociology of New York. In so doing, it concludes …

Courts As Forums For Protest, Jules Lobel

ExpressO

For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary’s role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The public law or structural reform litigation emphasized the judiciary’s role in implementing social change and not simply ordering private relationships.

The ongoing debate between these two views of the judicial role has obscured a third model of the role of courts in a democratic society; a model that has been ignored by legal scholars and viewed as illegitimate by some courts. That …

Are You Experienced?: Examining The Need For Specialized Ethics Rules In Patent Litigation, Benjamin J. Sodey

ExpressO

Any attorney licensed to practice before a federal district court, regardless or his or her area of specialization, may file a patent infringement suit on behalf of a client in that court. The possibility exists, therefore, for an attorney having little or no intellectual property experience to represent clients in complex patent litigation matters. Due to this, infringement defendants and their counsel may find themselves on the receiving end of a dubious patent claim brought by attorneys lacking patent law experience. This article discusses whether the existing rules governing attorney conduct, such as professional responsibility, procedural, or statutory rules, are …