Law Commons^™

Client-Focused Management Of Expectations For Legal Fees In Large Chapter 11 Cases, Nancy B. Rapoport

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Large chapter 11 cases can have fees that run into the hundreds of millions of dollars. That's one of the reasons that, in 2013, the Executive Office of the United States Trustee promulgated additional guidelines that affect legal fees in large chapter 11 cases. Bankruptcy courts have been appointing fee examiners and fee committees in large cases to aid the courts in their duty to ensure that the fees and expenses of estate-paid professionals are reasonable. I've been one of those people charged with helping bankruptcy courts review fees. As such, I've seen first-hand what happens when the professionals involved …

Using General Counsel To Set The Tone For Work In Large Chapter 11 Cases, Nancy B. Rapoport

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This Essay suggests that one way for the general counsel to help bankruptcy professionals make better staffing and budget decisions is to communicate her values more clearly to those professionals at the beginning of the engagement. In her role as the chief legal officer, the general counsel needs to let the bankruptcy professionals in on her thought processes. How does she watch over her own attorneys' decisions in other types of cases? What expenses does she consider reasonable? If she takes an active role in monitoring her bankruptcy professionals' work, her values (assuming that they're good values) will contribute to …

What Can We Expect Of Law And Religion In 2020, Leslie C. Griffin

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The United States is in a religion-friendly mood-or at least its three branches of government are. The Supreme Court is turning away from its Free Exercise Clause analysis that currently holds that every religious person must obey the law. At the same time, the Court is rejecting its old Establishment Clause analysis that the government cannot practice or support religion. The old model of separation of church and state is gone, replaced by an ever-growing unity between church and state. This Article examines how much union of church and state this Court might establish.

The Fate Of State Investor Protection, Benjamin P. Edwards

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In June 2019, the Securities & Exchange Commission made significant changes to the regulation of investment advice, issuing regulations and new interpretations of the Investment Advisers Act of 1940. Industry advocates have argued that states lack power to enact their own regulations on the theory that various federal statutes and regulations combine to preempt and sharply limit state authority. This article examines the current state of reforms around the country and the policy and legal arguments for and against limiting state efforts to raise the standards for investment advice.

Training Law Students To Maintain Civility In Their Law Practices As A Way To Improve Public Discourse, Nancy B. Rapoport

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Our current social discourse is broken. Not only have we resorted to name-calling instead of reasoned discussion, but we have also resorted to the fundamental attribution error: we attribute bad motives to people with whose positions we disagree rather than starting with the presumption that, perhaps, buried deep within their positions could be a grain of truth. As Yoni Appelbaum observed in a recent article in The Atlantic, "Recent research by political scientists at Vanderbilt University and other institutions has found both Republicans and Democrats distressingly willing to dehumanize members of the opposite party."' We need to find a …

#Metoo Backlash Or Simply Common Sense?: It's Complicated, Ann C. Mcginley

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This Essay focuses on the skittishness that men express about being accused of sexual harassment. Part II explains the prevalence of sexual harassment and the response to this problem, giving both empirical and anecdotal evidence of male professionals' refusals to spend time with female subordinates. Part III discusses the already-present inequalities in the legal profession, particularly in law firms and raises concerns about how lack of mentoring and sponsorship of women by male supervisors could create an even greater disparity. Part IV analyzes the disparate legal, business, and cultural definitions of sexual harassment, and given the disparities in understandings, raises …

Navigating Technology Competence In Transactional Practice, Lori D. Johnson

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In 2012, the American Bar Association House of Delegates, based on the work of the ABA Commission on Ethics 20/20, amended the Model Rules of Professional Conduct (Model Rules) to include a new requirement concerning lawyer competence. The obligation, enacted as Comment 8 to existing Model Rule 1.1 (outlining a lawyer's requisite competence) (Rule 1.1), requires lawyers "keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." To date, Comment 8 to Rule 1.1 (Comment 8 or the Comment) has been adopted in thirty-eight states, and has begun generating scholarship and …

“Remarkable Influence”: The Unexpected Importance Of Justice Scalia’S Deceptively Unanimous And Contested Majority Opinions, Linda L. Berger, Eric C. Nystrom

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What constitutes judicial influence and how should it be measured? Curious about the broader role that rhetoric plays in judicial influence over time, we undertook a rhetorical-computational analysis of the 282 majority opinions that Justice Scalia wrote during his 30 years on the Supreme Court. Our analysis is the first to examine the full majority opinion output of a Supreme Court justice using a unique “medium data” approach that combines rhetorical coding with quantitative analysis relying on Shepard’s Citations and LexisNexis headnotes. The resulting study casts doubt on the ability of judicial authors, including Justice Scalia, to control the extent …

Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum

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This Article proceeds in two parts. Part I argues for a dynamic, rather than fixed, conception of access to justice. It then explores how ADR processes, when placed in this dynamic framework, can create new forms of injustice and intensify preexisting ones. Part II presents a case study from the foreclosure crisis to illustrate how the features of ADR processes are especially well suited to respond to dynamic injustices. It further demonstrates how ADR design must evolve to respond to the dynamic system of (in)justice in which ADR processes operate.

Diploma Privilege And The Constitution, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol M. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner

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The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Legal Ethics And Law Reform Advocacy, Jeffrey W. Stempel

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Social activism, particularly law reform, has long been an accepted, even revered part of the lawyer's identity. However, modern developments such as nation-wide firms, the economic importance of client development, and aggressive attempts by clients to deploy attorneys as de facto, undisclosed lobbyists have put substantial pressure on the traditional vision of the attorney as a "lawyer-statesman" or someone who "checks clients at the door" when participating in law reform activities. Furthermore, law reform activism on behalf of one client (or prospective client when attorneys use their law reform lobbying as part of their marketing strategy) poses a real danger …

Cruzan And Surrogate Decision-Making, David Orentlicher

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When the U.S. Supreme Court issued its landmark “right to die” decision in Cruzan v. Director, Missouri Department of Health thirty years ago, the dissenting Justices and many observers criticized the Court for rejecting a right of Nancy Cruzan’s parents to refuse medical care on her behalf. Ms. Cruzan had not written a living will or a durable power of attorney, nor did it appear that she had left clear oral instructions about her wishes. But she did have loving parents who were dedicated to doing what was best for her. Nevertheless, according to the Cruzan Court, “If the State …

Public Art, Public Space, And The Panorama Right, Mary Lafrance

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When art is installed in public spaces in the United States, the public's right to capture and share images for commercial or noncommercial purposes is not clearly defined by federal copyright law. This has led to both actual and threatened litigation. In the absence of a specific copyright rule designed to address these disputes, they must be resolved under a patchwork of other doctrines that are uncertain in scope, including fair use, de minimis use, and the statutory exception for images of architectural works, but none of these provide predictable results. In contrast, many foreign jurisdictions have enacted 'freedom of …

Bridging Divides In Divisive Times: Revisiting The Massie-Fortescue Affair, Stewart Chang

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This Article revisits the infamous Massie-Fortescue rape and murder cases that occurred in Hawai'i during the 1930s, in order to challenge the methods by which race scholars have previously analyzed the case by relying on gender hierarchies. Thalia Massie, a white woman, accused five "Hawaiians" of gang raping her, even though they were of various Asian Pacific ethnic identities. The rape case ended in a hung jury, and so her relatives resorted to vigilante murder of one of the defendants. The subsequent murder trial resulted in convictions, but the 10- year prison sentences for the white defendants were commuted to …

Feminist Perspectives On Bostock V. Clay County, Georgia, Ann C. Mcginley, Nicole Porter, Danielle Weatherby, Ryan Nelson, Pamela Wilkins, Catherine Archibald

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This jointly-authored essay is a conversation about the Supreme Court’s recent and groundbreaking decision (Bostock v. Clayton County) that held that discrimination based on sexual orientation or gender identity is discrimination based on sex, and therefore prohibited by Title VII of the Civil Rights Act of 1964. While many scholars are writing about this case, we are doing something unique. We are analyzing this decision from feminist perspectives. We are the editors and four of the authors of a book recently published by Cambridge University Press: Feminist Judgments: Rewritten Employment Discrimination Opinions. This book contains fifteen Supreme Court and Courts …

Using Data Analytics To Predict An Individual Lawyer's Legal Malpractice Risk Profile: Becoming An Lpl "Precog", Nancy B. Rapoport, Joseph R. Tiano Jr.

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The power of data analytics is revolutionizing the way that business is conducted in nearly every industry. The medical industry, the consumer/retail space, and the banking and financial industries are taking their business operations to the next level by leveraging the power of big data. Despite radical transformations in nearly every other aspect of the legal industry, though, the approach to preventing, predicting, assessing, and resolving malpractice claims hasn't really changed. Malpractice insurers and their law firm clients continue to take an old-fashioned approach when it comes to legal professional liability. Unlike the insurers pricing automobile policies, the vast opportunity …

Humanizing The Tax System: What National Taxpayer Advocate Nina E. Olson Did For America's Kids And Their Families, Francine J. Lipman

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At their core, taxpayer rights are human rights. They are about our inherent
humanity.—Nina E. Olson

The federal income tax system does not exist for statutes, regulations, codes, enforcement, assessments, collection, redistribution, procedures, publications, liens, levies, refunds, liabilities, litigation, compliance, or even revenue. At its core, the federal income tax system exists for people. People like you, me, and all our loved ones including spouses, partners, parents, kids, brothers, sisters, nieces, nephews, grandparents, grandkids, friends, and neighbors. The people who eat at our tables and sleep under our roofs. The tax system is about current and future generations who live …

Building Worker Collective Action Through Technology, Ruben J. Garcia

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The COVID-19 pandemic has exacerbated the inequality between workers and their employers, and decreased worker power over their terms and conditions of employment. At the same time, the workers are more dispersed than ever, with more employers disestablishing the traditional office in favor of a hybrid model that further atomizes workers and makes collective action harder. At the same time, the ability for workers to organize themselves on social media and on company e-mail systems has been limited by recent decisions of the National Labor Relations Board (NLRB), and are always subject to possible employer discovery and retaliation. New technologies …

How To Make A Dead Armadillo: Consumer Contracts And The Perils Of Compromise, Jeffrey W. Stempel

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The ALI's proposed Restatement of the Law, Consumer Contracts ("RLCC") has managed to alarm both corporate America and consumer advocates, including half the nation's attorneys general. To some extent, the RLCC is yet another victim of the nation's increasing polarization and the rise of partisanship within the legal profession. But the RLCC suffers from self-inflicted wounds through questionable endorsement of problematic case law on contract formation as well as its goal of a well-intentioned but flawed "Grand Bargain" that arguably seized a middle ground disliked, for different reasons, by both consumer and business advocates. The RL CC stepped into this …

The Dangers Of Disclosure: How Hiv Laws Harm Domestic Violence Survivors, Courtney Cross

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People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts-even acts that carry low to no risk of infection-can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created …

Papercuts: Hierarchical Microaggressions In Law Schools, Nantiya Ruan

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The Article investigates law schools as locations of workplace fairness by examining its hierarchical structure and the power dynamics at work. Others have researched and written on the myriad ways in which “legal skills faculty” are treated unfairly as compared to those that primarily teach non-skills (or doctrinal classes) because of the subject matter that they teach and the assumptions that are made about their credentials and ability to contribute to the law school mission. Likewise, other scholars have critically examined the discrimination experienced by law school faculty members based on race, gender, sexual orientation, and other identities. What has …

The Bar Exam And The Covid-19 Pandemic: The Need For Immediate Action, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol M. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner

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The novel coronavirus COVID-19 has profoundly disrupted life in the United States. Among other challenges, jurisdictions are unlikely to be able to administer the July 2020 bar exam in the usual manner. It is essential, however, to continue licensing new lawyers. Those lawyers are necessary to meet current needs in the legal system. Equally important, the demand for legal services will skyrocket during and after this pandemic. We cannot close doors to the profession at a time when client demand will reach an all-time high.

In this brief policy paper, we outline six licensing options for jurisdictions to consider for …

Judicial Disqualification: Federal-State Distinctions, Jeffrey W. Stempel

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Federal and state law regarding disqualification (aka recusal) of judges is both similar and different, requiring that counsel be aware of federal and state statutes, the Nevada Code of Judicial Conduct and even constitutional considerations.

Politically Engaged Unionism: The Culinary Workers Union In Las Vegas, Ruben J. Garcia

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This chapter introduces the reader to "politically engaged unionism" as demonstrated by the bargaining successes of The Culinary Workers Union Local 226 in Las Vegas, Nevada. Professor Ruben J. Garcia provides a brief background of the union and its member demographics, arguing it can serve as a model for unions across the country.

About A Revolution: Toward Integrated Treatment In Drug And Mental Health Courts, Sara Gordon

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This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic …

Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance

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Determining the best choice of law principle for right of publicity claims, and persuading courts to adopt this principle, will enhance predictability for potential plaintiffs and defendants in the foreseeable future. To begin this process, this article by Professor Mary LaFrance takes a critical look at the widespread practice of applying the law of the celebrity's domicile to determine the existence of an enforceable right of publicity.

This article suggests that there are strong policy arguments against the domicile rule, and that courts adhering to the rule are confusing disputes over property ownership with disputes over liability for tortious injury …

Immigration And Naturalization, Stewart Chang, Sabrina Damast, Anju Gupta, Pooja Mehta, Samantha Rumsey

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Immigration law has always been interesting and controversial. Yet in 2018, it became disproportionately so. Law and policymakers identified issues such as unlawful migration, the border between the United States and Mexico, Muslim immigration, and even high-skilled worker visas as critical election issues in anticipation of the 2018 midterm election. Additionally, the current U.S. Executive Branch has taken a hardline approach to immigration, pursuing opportunities to limit, rather than expand, access by non-citizens to U.S. opportunities. As a prime policy example, the fact that U.S. Citizenship and Immigration Services (USCIS), that is responsible for processing immigration and naturalization applications and …

Protecting Auto Accident Victims From The Um/Uim Insurer Identity Crisis, Jeffrey W. Stempel, Erik S. Knutsen

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Automobile liability insurance is mandatory for drivers in all states, so as to provide for an available source of compensation for auto accident victims. Yet more than 20% of drivers in some states drive without valid, collectible automobile liability insurance. Another vast proportion of drivers have woefully inadequate financial limits of liability insurance that could not pay for even a modest percentage of a typical accident victim's compensatory needs. An auto accident victim cannot choose which tortfeasor driver injures her in a collision. Without the at-fault tortfeasor driver's liability insurance to act as a source of full compensation for her …

A New Water Law Vista: Rooting The Public Trust Doctrine In The Courts, Joseph Regalia

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Courts largely view the public trust doctrine as limited by state legislative and executive policy. According to this widespread theory, states may be required to hold in trust a handful of historically-big waterbodies (referred to as “navigable” waters) for certain uses like commerce, but beyond that, states are free to dispose of water without considering the public’s interests.36 So there is no requirement that states consider, for example, the public’s interest in conserving Walker Lake, a lake much older that the state of Nevada itself. And not only can the public not meaningfully challenge a state’s legislative or executive decisions …

Ringing Changes: Systems Thinking About Legal Licensing, Joan W. Howarth, Judith Welch Wegner

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Part I examines core assumptions associated with licensing systems as well as associated ambiguities. In particular, it acknowledges multiple understandings about what “competence” is and differing assumptions about how to evaluate or measure it. Part I thus sets forth important predicates for our argument that only a multi-faceted licensing system can do what is needed in assuring minimal competence, and that not all forms of competence are best measured by traditional licensing examinations.

Part II raises the possibility of creating a post-first-year examination designed to assess critical thinking in the context of the first-year curriculum. It also considers ways in …