Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 146
Full-Text Articles in Law
Lawyers As Social Engineers: How Lawyers Should Use Their Social Capital To Achieve Economic Justice, Dana Thompson
Lawyers As Social Engineers: How Lawyers Should Use Their Social Capital To Achieve Economic Justice, Dana Thompson
Michigan Journal of Race and Law
The Michigan Business & Entrepreneurial Law Review (MBELR) has always strived to provide a platform for legal scholars, professionals, and students to publish business-related legal scholarship. Yet, little legal business scholarship focusing on the Black business community exists, despite the extraordinary impact that Black communities have in the U.S. business landscape. In a year of revolutionary social change, we are excited to feature in this special issue the work of Professor Dana Thompson, a Michigan Law alumna, in an effort to remedy this gap. Professor Thompson’s career, professional values, and day-to-day work demonstrate genuine, commanding, and inspiring commitment to social …
“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt
“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt
University of Michigan Journal of Law Reform
First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed. Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of “adequacy …
An Apology For Lawyers: Socrates And The Ethics Of Persuasion, Sherman J. Clark
An Apology For Lawyers: Socrates And The Ethics Of Persuasion, Sherman J. Clark
Michigan Law Review
Review Plato's "Apology of Socrates" in Six Great Dialogues: Apology, Crito, Phaedo, Phaedrus, Symposium, and The Republic.
Solitude, Leadership, And Lawyers, Amul R. Thapar, Samuel Rudman
Solitude, Leadership, And Lawyers, Amul R. Thapar, Samuel Rudman
Michigan Law Review
Review of Raymond M. Kethledge and Michael S. Erwin's Lead Yourself First: Inspiring Leadership Through Solitude.
The Making Of The Supreme Court Bar: How Business Created A Solicitor General For The Private Sector, Jeremy Pilaar
The Making Of The Supreme Court Bar: How Business Created A Solicitor General For The Private Sector, Jeremy Pilaar
Michigan Law Review Online
This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to 55.5% …
"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe
"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe
Michigan Law Review
In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen …
Am I My Client? Revisited: The Role Of Race In Intra-Race Legal Representation, Julie D. Lawton
Am I My Client? Revisited: The Role Of Race In Intra-Race Legal Representation, Julie D. Lawton
Michigan Journal of Race and Law
This Article examines the challenges of intra-race legal representation for lawyers of color, law students of color, and those teaching law students of color by analyzing how the dynamics of the lawyer’s and client’s racial sameness impact legal representation. This Article brings together three strands of lawyering theory – the role of race in lawyering, critical race theory, and the role of the lawyer in intra-race legal representation. In doing so, this Article explores a number of provocative questions: Does being the same race as their clients make lawyers better legal representatives? Should lawyers of color embrace or resist race’s …
Drawing (Gad)Flies: Thoughts On The Uses (Or Uselessness) Of Legal Scholarship, Sherman J. Clark
Drawing (Gad)Flies: Thoughts On The Uses (Or Uselessness) Of Legal Scholarship, Sherman J. Clark
University of Michigan Journal of Law Reform Caveat
In this essay, I argue that law schools should continue to encourage and support wide-ranging legal scholarship, even if much of it does not seem to be of immediate use to the legal profession. I do not emphasize the relatively obvious point that scholarship is a process through which we study the law so that we can ultimately make useful contributions. Here, rather, I make two more-subtle points. First, legal academics ought to question the priorities of the legal profession, rather than merely take those priorities as given. We ought to serve as Socratic gadflies—challenging rather than merely mirroring regnant …
Incentivizing Lawyers To Play Nice: A National Survey Of Civility Standards And Options For Enforcement, Cheryl B. Preston, Hilary Lawrence
Incentivizing Lawyers To Play Nice: A National Survey Of Civility Standards And Options For Enforcement, Cheryl B. Preston, Hilary Lawrence
University of Michigan Journal of Law Reform
In the last decade, most commentators assume that lawyers’ behavior is now diving to new lows, notwithstanding a flurry of professionalism and civility creeds adopted in the 1980s and 1990s. Proponents of making such creeds enforceable argue that a return to professionalism may improve lawyers’ well-being, restore the public’s confidence in lawyers, and raise the expectations of behavior, not only with respect to civility but also with respect to violations of the Rules of Professional Conduct (hereinafter, as adapted in various jurisdictions, the Rules of Professional Conduct or the Model Rules)
Retaining Color, Veronica Root
Retaining Color, Veronica Root
University of Michigan Journal of Law Reform
It is no secret that large law firms are struggling in their efforts to retain attorneys of color. This is despite two decades of aggressive tracking of demographic rates, mandates from clients to improve demographic diversity, and the implementation of a variety of diversity efforts within large law firms. In part, law firm retention efforts are stymied by the reality that elite, large law firms require some level of attrition to function properly under the predominant business model. This reality, however, does not explain why firms have so much difficulty retaining attorneys of color — in particular black and Hispanic …
Letting Go Of Old Ideas, William D. Henderson
Letting Go Of Old Ideas, William D. Henderson
Michigan Law Review
Two recently published books make the claim that the legal profession has changed (Steven Harper’s The Lawyer Bubble: A Profession in Crisis) or is changing (Richard Susskind’s Tomorrow’s Lawyers: An Introduction to Your Future). The books are interesting because they discuss the types of changes that are broad, sweeping, and dramatic. In suitable lawyer fashion, both books are unfailingly analytical. They both also argue that the old order is collapsing. The Lawyer Bubble is backward looking and laments the legacy we have squandered, while Tomorrow’s Lawyers is future oriented and offers fairly specific prescriptive advice, particularly to those lawyers entering …
Frost For Lawyers: 'The Best Thing That We're Put Here For's To See', Sherman J. Clark
Frost For Lawyers: 'The Best Thing That We're Put Here For's To See', Sherman J. Clark
Michigan Law Review
Why should lawyers read Frost? First of all, of course, it can bring great pleasure. As Robert Pinsky put it, poetry brings pleasures “both intellectual and bodily” and can provide “a satisfaction central to life.” And this is particularly true of Frost, whose poems are both accessible and enjoyable. This does not mean that there are no challenges in his poems. Frost does make us work. Indeed, as I hope to explore in this Essay, the work he asks us to do is essential to what we can learn from his poems. But this work is itself engaging and invigorating …
The Transformative Potential Of Attorney Bilingualism, Jayesh M. Rathod
The Transformative Potential Of Attorney Bilingualism, Jayesh M. Rathod
University of Michigan Journal of Law Reform
In contemporary U.S. law practice, attorney bilingualism is increasingly valued, primarily because it allows lawyers to work more efficiently and to pursue a broader range of professional opportunities. This purely functionalist conceptualization of attorney bilingualism, however, ignores the surprising ways in which multilingualism can enhance a lawyer's professional work and can strengthen and reshape relationships among actors in the U.S. legal milieu. Drawing upon research from psychology, linguistics, and other disciplines, this Article advances a theory of the transformative potential of attorney bilingualism. Looking first to the development of lawyers themselves, the Article posits that attorneys who operate bilingually may, …
Making Method Visible: Improving The Quality Of Science-Based Regulation, Pasky Pascual, Wendy Wagner, Elizabeth Fisher
Making Method Visible: Improving The Quality Of Science-Based Regulation, Pasky Pascual, Wendy Wagner, Elizabeth Fisher
Michigan Journal of Environmental & Administrative Law
Scientific inferences are theories about how the world works that scientists formulate based on their observations. One of the most difficult issues at the intersection of law and science is to determine whether the weight of evidence supports one scientific inference versus other competing interpretations of the observations. In administrative law, this difficulty is exacerbated by the behavior of both the courts and regulatory agencies. Agencies seldom achieve the requisite visibility that explains the analytical methods they use to reach their scientific inferences. Courts—because they appreciate neither the variety of inferential methods nor their epistemic foundations—do not demand this level …
Federal Constraints On States’ Ability To License An Undocumented Immigrant To Practice Law , Adam Wright
Federal Constraints On States’ Ability To License An Undocumented Immigrant To Practice Law , Adam Wright
Michigan Journal of Race and Law
No court has decided whether an undocumented immigrant can be admitted to a state bar in a manner consistent with federal law. At the time of this writing, the issue is pending before the California Supreme Court. Federal law prohibits states from providing public benefits to undocumented immigrants. In its definition of a “public benefit,” 8 U.S.C. § 1621 includes any professional license “provided by an agency of a State . . . or by appropriated funds of a State . . . .” The law’s prohibitions, however, are not unqualified. The statute’s “savings clause” allows states to provide public …
The Crisis In Legal Education: Dabbling In Disaster Planning, Kyle P. Mcentee, Patrick J. Lynch, Derek M. Tokaz
The Crisis In Legal Education: Dabbling In Disaster Planning, Kyle P. Mcentee, Patrick J. Lynch, Derek M. Tokaz
University of Michigan Journal of Law Reform
The legal education crisis has already struck for many recent law school graduates, signaling potential disaster for law schools already struggling with their own economic challenges. Law schools have high fixed costs caused by competition between schools, the unchecked expansion of federal loan programs, a widely exploited information asymmetry about graduate employment outcomes, and a lack of financial discipline masquerading as innovation. As a result, tuition is up, jobs are down, and skepticism of the value of a J.D. has never been higher. If these trends do not reverse course, droves of students will continue to graduate with debt that …
The Crisis Of The American Law School, Paul Campos
The Crisis Of The American Law School, Paul Campos
University of Michigan Journal of Law Reform
The economist Herbert Stein once remarked that if something cannot go on forever, it will stop. Over the past four decades, the cost of legal education in America has seemed to belie this aphorism: it has gone up relentlessly. Private law school tuition increased by a factor of four in real, inflation-adjusted terms between 1971 and 2011, while resident tuition at public law schools has nearly quadrupled in real terms over just the past two decades. Meanwhile, for more than thirty years, the percentage of the American economy devoted to legal services has been shrinking. In 1978 the legal sector …
Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak
Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak
Michigan Law Review
If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is …
Providing Capital For Law Firms In A Credit Crisis: Non-Lawyer Equity Ownership, Brett Novick
Providing Capital For Law Firms In A Credit Crisis: Non-Lawyer Equity Ownership, Brett Novick
University of Michigan Journal of Law Reform Caveat
Last year, a New York federal district court dismissed a lawsuit by Jacoby & Meyers LLP attacking a New York law that prevents non-lawyers from owning an equity interest in law firms. On November 21, 2012, the U.S. Court of Appeals for the Second Circuit resuscitated the lawsuit, remanding the case to the district court and granting Jacoby & Meyers LLP leave to amend its complaint. Non-lawyers owning an equity interest in law firms is not a new idea, as countries such as Australia and the United Kingdom already allow it, and the United States should follow their example to …
Misunderstanding Lawyers' Ethics, Monroe H. Freedman, Abbe Smith
Misunderstanding Lawyers' Ethics, Monroe H. Freedman, Abbe Smith
Michigan Law Review
The title of Daniel Markovits's book, A Modern Legal Ethics, gives the impression that it is a comprehensive treatise on contemporary lawyers' ethics. The contents of the book, however, are both more limited and more expansive than the title suggests. Markovits's treatment of lawyers' ethics concerns itself with what he conceives to be the pervasive guilty conscience of practicing lawyers over their "professional viciousness" (p. 36), and how lawyers can achieve a guilt-free professional identity "worthy of ... commitment" (p. 2). Markovits's goal in the book is to "articulat[e] a powerful and distinctively lawyerly virtue" (p. 2), one that …
Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson
Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson
University of Michigan Journal of Law Reform
Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a number of …
Men And Women Of The Bar: The Impact Of Gender On Legal Careers, Kenneth G. Dau-Schmidt, Marc S. Galanter, Kaushik Mukhopadhaya, Kathleen E. Hull
Men And Women Of The Bar: The Impact Of Gender On Legal Careers, Kenneth G. Dau-Schmidt, Marc S. Galanter, Kaushik Mukhopadhaya, Kathleen E. Hull
Michigan Journal of Gender & Law
In the last three and a half decades, the legal profession has undergone a dramatic transformation in the gender composition of its members. During that time, the number of women applying to law school and entering the profession has gone from a few gallant pioneers to roughly equal representation with that of men. Between 1970 and 2000, the proportion of first-year law students who were female climbed from 8% to 49%. Because the existing bar consisted primarily of male lawyers, the percent of women in the legal profession changed more slowly, but still rose dramatically. Women, as a percent of …
Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Traylor Schaffzin
Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Traylor Schaffzin
University of Michigan Journal of Law Reform
This Article addresses the novel ethical problems presented by the common interest doctrine that implicate an attorney's duties of diligence, confidentiality, and loyalty to his or her client. These adverse effects of informal aggregation are not always fully considered before engaging a client in a common interest arrangement, but they should be. In Part II, this Article first explains the potential advantages that the common interest doctrine presents as an evidentiary tool, but then recognizes that exercise of the doctrine creates an undefined duty on the part of the attorney to the party with whom a client exchanges confidential information. …
Lawyer As Emotional Laborer, Sofia Yakren
Lawyer As Emotional Laborer, Sofia Yakren
University of Michigan Journal of Law Reform
Prevailing norms of legal practice teach lawyers to detach their independent moral judgments from their professional performance-to advocate zealously for their clients while remaining morally unaccountable agents of those clients' causes. Although these norms have been subjected to prominent critiques by legal ethicists, this Article analyzes them instead through the lens of "emotional labor," a sociological theory positing that workers required to induce or suppress feeling in order to sustain the outward countenance mandated by organizational rules face substantial psychological risks. By subordinating their personal feelings and values to displays of zealous advocacy on behalf of others, lawyers, too, may …
Kidsvoice: A Multidisciplinary Approach To Child Advocacy, Scott Hollander, Jonathan Budd
Kidsvoice: A Multidisciplinary Approach To Child Advocacy, Scott Hollander, Jonathan Budd
University of Michigan Journal of Law Reform
There is growing recognition that effective child advocacy requires a broad range of knowledge that often goes well beyond the legal needs of the child. This Essay details the multidisciplinary approach to child advocacy that KidsVoice, a Pittsburgh legal services organization representing almost 5000 dependent children each year, has implemented to better develop uniquely tailored recommendations regarding which placement and services might create better possibilities of success for each child and family.
Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie
Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie
University of Michigan Journal of Law Reform
Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author's experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all …
Tribute To John Pickering, Marcia Greenberger
Tribute To John Pickering, Marcia Greenberger
Michigan Law Review
This room is filled with many women lawyers. All of us loved John Pickering and are in his debt, but we are only a small number of those who do. For many decades, John guided young, and I must admit not so young, women lawyers to positions where they could stand up for their own rights and the rights of others. He worked with us to champion the causes that matter most to women and their families. John used his great stature and the enormous respect that he garnered to open doors for women to leadership positions in the bar, …
Tribute To John Pickering, Ruth Bader Ginsburg
Tribute To John Pickering, Ruth Bader Ginsburg
Michigan Law Review
John Pickering was a grand human whose life is just cause for celebration. He taught constantly, through his own work and deeds, how lawyers in private practice can contribute hugely to the public good. John's dear friend, my revered D.C. Circuit colleague, Carl McGowan, spoke of the lawyer of technical competence content to be a working mason. The best of lawyers, Judge McGowan said, serve as architects, planners, builders in law. Along with high technical competence, the best of lawyers have a deep understanding of the nature and purposes of the law, which makes them wise and reliable counselors, broad-gauged …
Tribute To John Pickering, Timothy B. Dyk
Tribute To John Pickering, Timothy B. Dyk
Michigan Law Review
It is very appropriate that we are here today to honor John Pickering, who, for more than five decades, was a leading member of our bar. I first met John when I joined the small firm of Wilmer, Cutler & Pickering in 1964, two years after it was founded. The three founding fathers of the firm were formidable figures, particularly to a young lawyer, and John Pickering was no exception. I do not mean that John was unkind. He was the kindest of people. But there was something particularly serious about him, and I always wondered whether that had to …
Tribute To John Pickering, Raymond C. Clevenger
Tribute To John Pickering, Raymond C. Clevenger
Michigan Law Review
This is my homage to John. I ask you to summon up in your imagination today a grand circus, a sort of Cirque du Soleil of lawyers: full of shining talents performing legal feats of wonder, but presided over by a grand ringmaster. This ringmaster knows his performers very well. He knows how to train and stroke them to high achievement. He knows how to groom the younger workers. He can keep his stars in check. He knows when to sit back with a smile, letting his charges perform and claim the applause, even when the applause rightfully belongs to …