Law Commons^™

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Paul R. Tremblay

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns …

The Unjustified Absence Of Federal Fraud Protection In The Labor Market, Kent Greenfield

Kent Greenfield

Federal law offers significant protection against fraud in the capital market, based on the compelling rationale that accurate information is important in allowing the securities markets to allocate financial capital to real capital. Notwithstanding some recent statutory adjustments, federal securities law remains committed to a central idea: it is wrong for a company or a corporate official knowingly to make a misrepresentation in order to take value from another in a securities transaction. This article argues that rationales analogous to those justifying fraud protection in the capital market also hold true in the labor market. Fraud may in fact be …

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Kent Greenfield

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that result. …

The Place Of Workers In Corporate Law, Kent Greenfield

Kent Greenfield

This article critiques the low place of workers within corporate law doctrine. Corporate law, as it is traditionally taught, is primarily about shareholders, boards of directors, and managers, and the relationships among them. This is despite the fact that workers provide an essential input to a corporation's productive activities, and that the success of the business enterprise quite often turns on the success of the relationship between the corporation and those who are employed by it. Black letter corporate law requires directors to place the interests of shareholders above the interests of all other "stakeholders," including workers. This article analyzes …

Gradgrind’S Education: Using Dickens And Aristotle To Understand (And Replace?) The Business Judgment Rule, Kent Greenfield, John E. Nilsson

Kent Greenfield

This article uses literature and philosophy to help explain and critique existing corporate law doctrine. Starting from Charles Dickens's Hard Times, the article provides a new explanation for one of the great puzzles of existing corporate law doctrine, the coexistence of the strict duty of management to maximize profits and the "business judgment rule," the practice of courts to review management decisions with great deference. The article argues that the business judgment rule is a necessary corrective to the irrationality of the underlying duty to maximize profits. The article makes this argument by analogizing corporate law to Dickens's character of …

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Daniel Kanstroom

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features …

Deportation And Justice: A Constitutional Dialogue, Daniel Kanstroom

Daniel Kanstroom

Recent statutory changes to the United States immigration law have resulted in a large increase in the number of lawful permanent resident noncitizens who are deported because of prior criminal conduct. Now, deportation is often a virtually automatic consequence of conviction for an increasingly minor array of crimes including possessory drug offenses and shoplifting. Under current statutory law, permanent resident noncitizens may be deported for crimes that were not grounds for deportation when they were committed and there may be no possibiilty of mercy or humanitarian relief. This Dialogue explores arguments for and against this system. Specifically, it examines the …

Book Review Of Finding The Answers To Legal Questions, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Teaching Rule Synthesis With Real Cases, Paul Figley

Articles in Law Reviews & Other Academic Journals

Rule synthesis is the process of integrating a rule or principle from several cases. It is a skill attorneys and judges use on a daily basis to formulate effective arguments, develop jurisprudence, and anticipate future problems. Teaching new law students how to synthesize rules is a critical component in training them to think like lawyers. This article suggests how rule synthesis might be taught in one classroom session using real cases. It advocates a three-part approach. First, explain the nature of rule synthesis to the students. Second, do a whimsical exercise with them to show how rule synthesis works. Finally, …

Cost Effective Legal Research, Mike Martinez Jr, Katy Stein

Law Librarian Scholarship

This article discusses free and low-cost legal research resources that can help reduce the cost of litigation. A lawyer using such resources must appreciate not only the advantages of such resources, but also the disadvantages.

Checklists: Not Just For Pilots Anymore, Diane B. Kraft

Law Faculty Popular Media

In this column for Kentucky Bar Association's magazine (B&B - Bench & Bar), Professor Diane B. Kraft discusses how using checklists can improve an individual's legal writing skills.

Teaching Rule Synthesis With Real Cases, Paul F. Figley

Paul Figley

Rule synthesis is the process of integrating a rule or principle from several cases. It is a skill attorneys and judges use on a daily basis to formulate effective arguments, develop jurisprudence, and anticipate future problems. Teaching new law students how to synthesize rules is a critical component in training them to think like lawyers.

This article suggests how rule synthesis might be taught in one classroom session using real cases. It advocates a three-part approach. First, explain the nature of rule synthesis to the students. Second, do a whimsical exercise with them to show how rule synthesis works. Finally, …

Noción Y Elementos Existenciales Del Título De Crédito, Bruno L. Costantini García

Bruno L. Costantini García

Discernir la noción y elementos de existencia de los títulos de crédito, considerando la doctrina y la denominación expresada en nuestra Ley General de Títulos y Operaciones de Crédito, conceptualizando el término de los documentos que consignan un derecho crediticio propio de su naturaleza y deslindando de manera dogmatica y exegética los elementos que lo forman y le dan su funcionamiento, mediante una visión de las instituciones jurídicas que les dan su existencia y aplicación dentro del devenir de los actos de comercio.

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Robert M. Bloom

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court cases and …

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Sanford N. Katz

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to …

"I See And I Remember; I Do And Understand": Teaching Fundamental Structure In Legal Writing Through The Use Of Samples, Judith B. Tracy

Judith B. Tracy

A first-year legal reasoning and writing curriculum is designed to introduce students to the analytical skills and organizational tools needed for the preparation of effective objective and then persuasive documents. This article describes how to use samples to enable students to self-identify a general, logical structure for a document, considering its content, its audience and purpose, and the realities of legal practice.

'The Reasonable Zone Of Right Answers': Analytical Feedback On Student Writing, Jane Kent Gionfriddo

Jane Kent Gionfriddo

This article develops the theory behind and practice of written analytical feedback on student writing for law practice. After Section I, which provides an introduction, Section II discusses the theory. It begins by addressing the function of legal writing classes in teaching students how to produce the kind of accurate and precise analysis that is the necessary foundation for documents useful in law practice. The section then goes on to discuss how this focus on analysis requires legal writing teachers to play a dual role—that of a legal educator as well as reader in law practice—in providing written critique of …

Proprietary Estoppel, Michael Lp Lower

Michael LP Lower

This is a brief account of the law of proprietary estoppel in England and Hong Kong.

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

R. Michael Cassidy

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider their spousal privilege …

Toward A More Independent Grand Jury: Recasting And Enforcing The Prosecutor’S Duty To Disclose Exculpatory Evidence, R. Michael Cassidy

R. Michael Cassidy

This Article analyzes the Supreme Court’s decision in Williams, in which the Court struck down an attempt by the Tenth Circuit to impose an obligation on federal prosecutors to disclose substantial exculpatory evidence to the grand jury. The author discusses the contours of this case and the ethical underpinnings of a prosecutor’s disclosure obligations before the grand jury, and sets forth a new framework for consideration of such issues.

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Alfred C. Yen

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.

Psicopatologia E Poder. Uma Lição De "Mentes Perigosas", Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Por vezes, incomoda-se até ao insuportável o cidadão, ou o trabalhador, ou o morador comum, com as atitudes de um político, de um patrão ou de um capataz, ou mesmo de um colega, de um autarca, enfim, de uma autoridade ou de um agente da autoridade. Primeiro, são comportamentos suaves e calculistas antes de obter o poder e, uma vez com ele, passam a ver-se práticas autoritariamente aberrantes, despóticas, e até criminosas. Analisamos muitas vezes essas práticas como "mau feitio", "má disposição", e, se formos magnânimos, como o preço da eficiência. Mas em que medida o "mau carácter" não é …

Republicanos Ou Publicanos? A Constituição De 1911 E A Concretização Da Ii República, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Grande parte das críticas à I República são do mesmo tipo das que se fazem à que chamam III, mas que é a nossa actual II República (o Estado Novo não foi República). Contudo, houve e há coisas semelhantes e coisas diferentes entre ambas. Os principais erros e desvios da I República conseguiram ser corrigidos na II. Criou-se na nossa, a exemplo da I, um grave problema, a ser resolvido: a II República, tal como a I esteve, encontra-se hoje depauperada nas suas energias morais. E sem ética republicana, não há república que subsista. Urge criar uma elite abnegada (não …

Professionalism: The Deep Theory, Daniel R. Coquillette

Daniel R. Coquillette

Can our personal ethics and our professional ethics be in opposition? Our professional identity as lawyers is at the center of our personal morality. The legal profession is in crisis because we have lost sight of the deep theory of professionalism. This article focuses on our ultimate motivation for obeying rules, concentrating on three common categories: goal-based, rights-based, and duty-based theories. By examining these theories, the article argues that lawyers must turn away from the modern trend of goal instrumentalism and refocus legal practice on its humanistic roots.

A Methodology For Mentoring Writing In Law Practice: Using Textual Clues To Provide Effective And Efficient Feedback, Jane Kent Gionfriddo, Daniel Barnett, E. Joan Blum

E. Joan Blum

Becoming a successful legal writer is a process that begins in law school and continues intensively during the beginning years of a lawyer's career. Throughout this process, in both contexts, a writer benefits enormously from feedback on his analysis, and how that analysis is conveyed, from those more experienced. Much has been written about how legal educators should respond to student written work, yet little addresses the role that supervising attorneys can play in mentoring the writing of less experienced colleagues. This article therefore proposes a methodology to help supervisor-mentors provide, in an efficient manner, effective feedback on junior lawyers' …

Teaching In Practice: Legal Writing Faculty As Expert Writing Consultants To Law Firms, E. Joan Blum, Kathleen E. Vinson

E. Joan Blum

As experts in the pedagogy and substance of legal writing, full-time legal writing faculty who serve as writing consultants to law firms help fill an increasing need for training and support of lawyers. In addition to providing a direct benefit to lawyers and their firms, this practice benefits the legal academy by providing fresh ideas for teaching and scholarship. This article discusses generally the practice of legal writing consulting in law firms by full-time legal writing faculty. The article provides background in theory and practice, addressing why law firms seek outside consultants for this type of training and support and …

An Essay On Horseless Carriages And Paperless Negotiable Instruments: Some Lessons From The Article 8 Revision, James S. Rogers

James S. Rogers

As practices change, so too must the language and concepts that define and describe them. That is the lesson to be drawn from the past few decades’ work on the commercial law of investment securities. Article 8 is the first article of the Uniform Commercial Code to reach a third generation. There is the original version, the 1978 version, and now the 1994 version. The original version was based on the traditional system in which buyers and sellers effected transfer of securities by physical delivery of certificates. The 1978 version added new provisions dealing with “uncertificated securities.” Then the 1994 …

Globalization And The Theory Of International Law, Frank J. Garcia

Frank J. Garcia

The dominant modern account of the social basis of international law has been the "society of states" model. In this view, to the extent that international law constructs an ordered social space (a claim which has been contested since Hobbes if not before), it is a social space in which states are the actors. This view has had a profound effect on international law. For example, the doctrine of state responsibility classically understands international harms to individuals within a framework of harm to a state's rights. Normatively, to the extent justice is considered an operational concept in international law, it …

The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti

James R. Repetti

The U.S. tax system contains many provisions which are intended to align management of large publicly traded companies more closely to stockholders. This article shows that many of the tax provisions that have been adopted are of questionable effectiveness because they fail to address the complexities of stockholder-management relations in attempting to motivate management to act in the best interests of stockholders. The article proposes that rather than Congress attempting to identify the best way that it can use the tax system to motivate management, Congress should eliminate tax provisions which subsidize management's inefficiencies in order to encourage stockholders, themselves, …

The Standard Of Causation In The Mixed-Motive Title Vii Action—A Social Policy Perspective, Mark S. Brodin

Mark S. Brodin

In this Article, Professor Brodin explores the causal-relation problem in individual employment discrimination suits alleging disparate treatment brought under title VII of the Civil Rights Act of 1964. The effort in this Article is to define a theory of causation for the individual disparate treatment case that is consistent with the goals of title VII as well as with the realities and limitations of our adversary system of adjudication. Professor Brodin surveys the problem, traces the development of relevant case law and concludes with a proposal of causal analysis that separates issues of liability from those of remedy.