Law Commons^™

Three Concepts Of Roles, W. Bradley Wendel

San Diego Law Review

There is something distinctive about the law, legal reasoning, and the role of lawyers. That distinctiveness is captured by the idea that normative reasoning by citizens in communities is necessarily aimed at discovering what rights and obligations everyone ought to have, consistent with the interests of other citizens. It is implausible to believe that ordinary moral reasoning is well-suited to working out a scheme of public entitlements that is suited to regulating the interactions among citizens who disagree about what their entitlements ought to be. The law has authority to the extent it enables people to do better than they …

Legal Scholarship As Resistance To 'Science', Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

Why do law professors continue to produce scholarship even after achieving tenure? This essay, presented as part of a AALS panel discussing “Why We Write?”, considers some common and less common responses, and suggests that for at least a few professors, legal scholarship can serve as a way of resisting the overbearing dominance of the “scientific” worldview evident in so much modern thought in favor of a perspective more attentive to the value of persons.

The Tenuous Case For Conscience, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green

University of San Diego Public Law and Legal Theory Research Paper Series

This Article examines the ideal of prosecutorial neutrality in an effort to determine its value as a measure of prosecutorial conduct. Commentators often have assumed that prosecutors should be “neutral” in making discretionary decisions or have criticized prosecutors for decisions that purportedly demonstrate a lack of neutrality. The notion of prosecutorial neutrality recalls the traditional conception of prosecutors as “quasi-judicial” officers and emphasizes the distinction between prosecutors and lawyers for private parties. But the specific meaning attributed to prosecutorial neutrality has varied depending on the context. The term refers to diverse, and potentially inconsistent, views of appropriate prosecutorial conduct. The …

Understanding Recent Trends In Federal Regulation Of Lawyers, Fred C. Zacharias

University of San Diego Public Law and Legal Theory Research Paper Series

Federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. It is, however, worth considering more broadly whether and how the phenomenon of increasing federal regulation is symptomatic of changing views of appropriate professional regulation. This article considers a series of theoretical analyses of the increasing federal regulation -- themes and trends that the increasing regulation might represent or epitomize. Whenever the bar or other commentators criticize developments in professional regulation, it is important to place …

Lawyers As Gatekeepers, Fred C. Zacharias

University of San Diego Public Law and Legal Theory Research Paper Series

Three recent legislative and regulatory initiatives -- the Sarbanes-Oxley Act, the 2003 amendments to Model Rules 1.6 and 1.13, and the Gatekeeper Initiative – all seek to enlist the assistance of lawyers in thwarting crime. Outraged opponents have relied on flamboyant rhetoric. They challenge the notion that lawyers should act as gatekeepers – which some of the opponents deem equivalent to operating like the “secret police in Eastern European countries.” This article makes a simple, and ultimately uncontroversial, point. Lawyers are gatekeepers, and always have been. Whatever one’s position on the merits of the specific reforms currently being proposed, it …

Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …

The Hollowness Of The Harm Principle, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates …

Feminist Legal Writing, Kathryn M. Stanchi

San Diego Law Review

Because feminist legal advocates must use legal writing to persuade

their audience and push for change in the law, they must confront the dilemma of whether to follow legal writing conventions and risk altering or losing their feminist message or whether to break from convention and risk losing the legal audience. Feminist legal scholarship, in many different ways, has made great progress in dealing with this dilemma. The focus of this Article, however, is on several pieces of feminist legal scholarship that have confronted the dilemma by pushing the bounds of conventional legal language and legal writing. These pieces, by …

Teaching Professional Ethics, Tom C. Clark

San Diego Law Review

Unless the bar is uniformly imbued with that spirit of honesty and decency and unless it is inspired to insist upon the exercise of the highest ideals in the day-to-day practice of law, then no disciplinary system can be effective and no code of professional conduct will be anything more than a hypocritical farce. How can such an ethical renaissance take place? That, to be sure, is the question and to my mind there is but one possible answer. It must begin in the law schools of this country and spread from there — through continuing legal education programs and …

Legal Ethics Of The Trial Lawyer--How They Serve The Client, Leonard M. Ring

San Diego Law Review

The trial lawyer, especially, must recognize that the entire basis of legal intercourse is ethical and moral. Even viewed solely from the standpoint of those whom he represents, the attorney who enjoys a reputation for high ethical standards receives favorable treatment from the court which inures to the benefit of the client. First of all, the court knows that whatever a trial lawyer says or does, he dos so with the sincerity of his convictions, and also because he believes that it is the moral and proper thing to be done. The court is bound to attach greater weight to …

Watergate And The Law Schools, Donald T. Weckstein

San Diego Law Review

The misdeeds of the Watergate lawyers involve more than image tarnishing. A large number of the showcase successes for the profession have acted unethically, dishonestly, corruptly and criminally. But out of the debris of these fallen idols an opportunity for professional reform, more favorable than perhaps at any other time in our history, has arisen.

One Man's Perspective On Ethics And The Legal Profession, William Pincus

San Diego Law Review

The present system of educating and qualifying lawyers is questionable on ethical grounds because it holds out that it is preparing lawyers to serve clients when it does not do so. Limited to classroom and library in law school and to written exercises on Bar examinations, our educational and qualification process ignores the necessary transition from learning theory and doctrine to putting these into practice with a client. The present systems leaves untouched the largest part of the professional development of the lawyer, satisfied as it is with achievement in intellectual analysis and unconcerned as it has been with professional …

Professional Responsibility Problems And Contempt In Advocacy, Horace W. Gilmore

San Diego Law Review

In this Article, I propose to deal with a comparison between the standards of the ABA Code of Professional Responsibility and general contempt standards in two contexts: advocacy in the court room and the limits of pre-trial publicity by advocates.

Is The Bar Meeting Its Ethical Responsibilities?, John V. Tunney

San Diego Law Review

Our society depends to a large extent on lawyers to assure all citizens the protection and advantages of the law. The legal profession itself ? through its largest national organization, the American Bar Association, and through most state bars which adopt or enforce disciplinary rules for lawyers ? has chosen, in the canons quoted above, to impose on itself the ethical responsibility of making competent legal services available to all those who need them. Society has accepted the profession's position, and has subjected the ethical conduct of lawyers to little government interference or supervision.

Canon 2 - The Bright And Dark Face Of The Legal Profession, Alex Elson

San Diego Law Review

The focus of this Article is on the disciplinary rules which, though intended to implement Canon 2, in fact foreclose lawyers from ethically participating in plans designed to extend legal services to many Americans who otherwise would go without a lawyer.

Ethical Problems In Connection With The Delivery Of Legal Services, Walter P. Armstrong Jr.

San Diego Law Review

When the Code of Professional Responsibility was presented to the House of Delegates of the American Bar Association at its 1969 annual meeting by the Special Committee on the Evaluation of Ethical Standards, the only exception taken to any of its provisions was to that dealing with cooperation by a lawyer with an organization engaged in facilitating the delivery of legal services to the public. The Code, as drafted by the Committee, and as ultimately adopted at that time by the House of Delegates, provides that "a lawyer shall not knowingly assist a person or organization that recommends, furnishes or …