Law Commons^™

A Clumsy Couple: The Problem Of Applying Model Rule 1.7 In Transactional Settings, Katelyn K. Leveque

Indiana Law Journal

The American Bar Association’s Model Rules of Professional Conduct (“Model Rules”) have long addressed conflicts of interest, with fluctuating degrees of stringency.1 For as long as the rules have been in place, legal scholars have grappled with how lawyers can work within the confines of the rules to serve their clients best, as well as how the rules might better align with what clients seek and expect from their legal representation. In their current form, the Model Rules address conflicts of interest in Rule 1.7. However, both this rule and the Model Rules more generally are not one size fits …

How To Fix Legal Scholarmush, Adam Kolber

Indiana Law Journal

Legal scholars often fail to distinguish descriptive claims about what the law is from normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix it up, leading them to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. As a result, scholars sometimes talk past each other, generating not scholarship but “scholarmush.”

In recent years, legal scholarship has been criticized as too theoretical. When it comes to normative scholarship, however, the criticism is off the …

Fee-Shifting Statutes And Compensation For Risk, Maureen Carroll

Indiana Law Journal

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys’ labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state feeshifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation funding. …

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor obligations on …

Globalization: The Next 25 Years (Introduction), Alfred C. Aman

Indiana Journal of Global Legal Studies

A warm welcome to you all. Thank you for your participation in this very special milestone for this Journal. As you know, this symposium conference marks the twenty-fifth anniversary of the journal. Our first symposium conference was entitled "The Globalization of Law, Politics and Markets." Those papers were published in our first issue. I went back to that first issue not long ago, and found these lines:

"We currently stand at a watershed in the public law history of the United States. We have moved from local and state common-law, regulatory regimes that dominated the 19th and early 20th centuries, …

Lawyers In Africa: Brokers Of The State, Intermediaries Of Globalization - A Case Study Of The "Africa" Bar In Paris, Sara Dezalay

Indiana Journal of Global Legal Studies

Africa is the "Global Economy's Last Frontier"! Images of the African continent as a boon of mineral riches, and a new legal Far West pervade media and scholarly accounts. Yet, these images tend to reflect the protracted political and development dependency of African states, with lawyers involved in corporate dealings on the continent either denounced as mercenaries at the service of neo-colonial "looting" or idealized as missionaries of the rule of law. This article suggests a research strategy that moves away from these ideological and political accounts. It uses lawyers' trajectories and professional strategies as an entry-point to reglobalize the …

Learning From Law Students: How Phds Might Seek Legal Remedy In The Face Of Widespread Unemployment, Emily Grothoff

Indiana Law Journal

This Note examines overproduction and underemployment problems facing the academic market and PhD graduates9 from a legal perspective. Part I will briefly review key legal takeaways from several distinctive cases that law school graduates brought against their almae matres regarding poor employability. Part II then describes the particularities of the “PhD problem” and how it compares and contrasts with the problem that J.D. holders recently faced. Finally, Part III will examine what legal remedies disenfranchised PhDs might pursue and whether such remedies could—and should—be sought in the courts.

Don't Let The Facts Get In The Way Of The Truth: Revisiting How Buckhannon And Alyeska Pipeline Messed Up The American Rule, Landyn Wm. Rookard

Indiana Law Journal

No abstract provided.

Confirm Myra Selby For The Seventh Circuit, Carl W. Tobias

Indiana Law Journal

This Article canvasses Myra Selby’s dynamic professional record, the federal judicial selection process under President Obama, and the Seventh Circuit. It ascertains that Selby is an exceptionally competent, mainstream prospect and that the appellate court requires all of its members to deliver justice. However, Republican senators did not collaborate, particularly after they had captured a Senate majority—a circumstance that this presidential election year aggravates. The last section, therefore, proffers recommendations for Selby’s prompt Senate consideration and confirmation.

Ranking Law Schools With Lsats, Employment Outcomes, And Law Review Citations, Alfred L. Brophy

Indiana Law Journal

This Article offers an alternative to the much-discussed U.S. News & World Report rankings. Where U.S. News rankings are affected by a wide variety of factors —some of which are criticized as irrelevant to what prospective students care about or should care about—this Article looks to three variables: the median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at nine months following graduation at full-time, permanent, JD-required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of …

A Behavioral Theory Of Legal Ethics, Andrew M. Perlman

Indiana Law Journal

Behavioral insights have informed many areas of law, including the field of professional responsibility. Those insights, however, have had only a modest effect on the foundational theories of legal ethics, even though those theories are, at their core, prescriptions about human behavior. The reality is that lawyers’ conduct cannot be understood, theorized about, or used to produce the best possible regulations without an appreciation for the limits on human rationality and objectivity. A behavioral theory of legal ethics offers a way to incorporate those realties into the foundational debates on a lawyer’s professional role so that scholars can produce more …

Access To Legal Services In Rural Areas Of The Northern Rockies: A Recommendation For Town Legal Centers, Brian L. Lynch

Indiana Law Journal

There are two distinct but related issues that affect legal representation in rural areas of the United States: the problem of attracting and keeping private attorneys,1 and the problem of satisfying the immense need for pro bono representation for low-income residents. Although these issues are interrelated—attracting attorneys to rural areas can help satisfy the need for pro bono representation—each state is handling the problems in distinctive ways.

In Part I, this Note will demonstrate why the Northern Rockies—which consists of the states of Idaho, Montana, and Wyoming—is a distinctive region with enough similarities between states that a single proposal to …

Examining Pay Differentials In The Legal Field, Barbara Donn, Christine Cahill, Meghan H. Mihal

Indiana Journal of Law and Social Equality

This study investigates pay discrimination towards women in the legal field. Recent research has shown that a pay gap does exist in the legal field, and we show that this gap widens throughout the lawyers’ early careers. For our analysis, we focus on the pay differentials between associate level men and women at large private law firms in the United States. The data used in this study is provided by the American Bar Association and is a nationally representative data set following lawyers who began their legal career in 2000. We show that women earn less than their male counterparts …

The Aspiring And Globalizing Graduate Law Student: A Comment On The Lazarus-Black And Globokar Ll.M. Study, Jayanth K. Krishnan, Vitor M. Dias

Indiana Journal of Global Legal Studies

As a thought experiment, in the next section we present a theoretical frame (that builds on what previous scholars have discussed) for understanding motivation-as it relates to the subject focused on by Lazarus-Black and Globokar. Based on this model, we then postulate an alternative motivation for why foreign applicants might wish to pursue their LL.M. studies. We base our hypothesis on the experiences we have had in two countries we know well: India and Brazil. Because this is just a short Comment, we leave the empirical work on our proposal for future research. Our hope is that this exercise might …

At Play In The Field Of Law: Symbolic Capital And Foreign Attorneys In Ll.M. Programs, Jan Hoffman French

Indiana Journal of Global Legal Studies

In this Comment, I would like to pick up a thread of the authors' analysis and, in so doing, shift the emphasis a bit. That thread relates to their use of Pierre Bourdieu's theoretical conceptualizations of "field" and "forms of capital." In their analysis of admissions essays submitted by foreign-lawyer applicants, Lazarus-Black and Globokar consider how the discursive genre of the admissions essay orients itself to the powerladen structures that constitute the particular field within which the essay is playing, or to which it is addressed.8 They also use the Bourdieusian concepts of "cultural and linguistic capital" in relation to …

Notes Toward An Understanding Of The U.S. Market In Foreign Ll.M. Students: From The British Empire And The Inns Of Court To The U.S. Ll.M., Bryant G. Garth

Indiana Journal of Global Legal Studies

Mindie Lazarus-Black and Julie Globokar's article on "Foreign Attorneys in U.S. LL.M. Programs: Who's In, Who's Out, and Who They Are" uses interviews, LL.M. student observations, and actual admissions committee documents from one Midwest and one East Coast law school to confirm the tremendous growth of those programs over the past two decades in the United States and indicate who makes the journey to the United States; how foreign LL.M. candidates pitch themselves to admissions committees; how those admissions committees evaluate candidates; and what candidates expect from LL.M. programs. The voices that come through are quite compelling. We now know …

Immigrant Lawyers And The Changing Face Of The U.S. Legal Profession, Ethan Michelson

Indiana Journal of Global Legal Studies

In this Comment, I extend Lazarus-Black and Globokar's analysis further downstream to consider the stakes for the U.S. legal profession as a whole. Gatekeepers to LL.M. programs are doing far more than determining individual fates and collectively shaping the future of U.S. legal education. I will demonstrate in this Comment that their work helps shape-in concrete, measurable ways-the demographic composition of the U.S. legal profession. In so doing, I will contribute to the emerging field of legal demography, which refers to the study of lawyers through the analysis of data not collected for this specific purpose.

The Metaculture Of Law School Admissions: A Commentary On Lazarus-Black And Globokar, Bonnie Urciuoli

Indiana Journal of Global Legal Studies

What does it mean for law school applicants to become, as Mindie Lazarus-Black and Julie Globokar put it, "what the ranking[s] count[]"? What does it mean for foreign applicants to develop responses to the application process by writing essays in certain ways, to project themselves (again as Lazarus-Black and Globokar put it) as "commodified persona[s]"? The application process analyzed by Lazarus-Black and Globokar exemplifies what Greg Urban calls metaculture: cultural forms that point actors toward recognizing and understanding what they do as exemplifying a particular cultural pattern. Metaculture is the mechanism by which culture is reproduced, moving through time and …

Foreign Attorneys In U.S. Ll.M. Programs: Who's In, Who's Out, And Who They Are, Mindie Lazarus-Black, Julie L. Globokar

Indiana Journal of Global Legal Studies

In recent decades, there has been a remarkable growth in the number of foreign attorneys enrolled at U.S. law schools and particularly in LL.M. programs. To learn more about these students and how they fare, we conducted research in two law schools, one in the Midwest and the second on the East Coast. We examine the admissions process for foreign attorneys from the perspectives and experiences of both the administrators who make admissions decisions and the students who seek admission. We consider the layered international, national, state, and local laws that complicate the selection process, as well as the standards …

Admit That The Waters Around You Have Grown: Change And Legal Education, Mari J. Matsuda

Indiana Law Journal

Presented as the Addison C. Harris Lecture at Indiana University Maurer School of Law, Bloomington, Indiana, September 25, 2013.

Making The Client's Peace: "Privatizing" Peace? Global Law Firms Offering Pro Bono Services In Post-Conflict Settings, Cindy Daase

Indiana Journal of Global Legal Studies

Lawyers of global law firms have begun to take on complex pro bono representations for clients in peace and constitution-building settings. These lawyers, who often cooperate across different offices of a global law firm, are not acting based on an external mandate but pursuant to an attorney-client relationship. The client is the source of authority and the owner of the process; yet, global law firms that serve pro bono clients are also a form of profit-making transnational corporation. In their day-today business they represent the interests of paying clients. This article will discuss whether and how such constellations can lead …

Protecting The Home Turf: National Bar Associations And The Foreign Lawyer, Brendan K. Smith

Indiana Journal of Global Legal Studies

This note addresses the issues raised by domestic laws and bar associations limiting the practice of foreign lawyers. It looks at how the increase in globalization has led different countries to take different approaches toward dealing with these foreign lawyers. There are complex and varying reasons for how a country approaches foreign lawyers, as is demonstrated particularly through the actions of Brazil, India, and Japan. Also, it appears that emerging, but not as of yet established, global economic powers have decided it is in their interest to severely restrict the activity of foreign lawyers. The note suggests that these emerging …

Enduring Hierarchies In American Legal Education, Olufunmilayo B. Arewa, Andrew P. Morriss, William D. Henderson

Indiana Law Journal

Although much attention has been paid to U.S. News & World Report’s rankings of U.S. law schools, the hierarchy it describes is a long-standing one rather than a recent innovation. In this Article, we show the presence of a consistent hierarchy of U.S. law schools from the 1930s to the present, provide a categorization of law schools for use in research on trends in legal education, and examine the impact of U.S. News’s introduction of a national, ordinal ranking on this established hierarchy. The Article examines the impact of such hierarchies for a range of decision making in law school …

Introduction: Effects Of Global Developments On Gender And The Legal Practice, Gabriele Plickert

Indiana Journal of Global Legal Studies

Women in Legal Practice: Global and Local Perspectives, Symposium, June 5-8, 2012. Annual Meeting of the Law and Society Association.

Gender And Global Lawyering: Where Are The Women?, Steven A. Boutcher, Carole Silver

Indiana Journal of Global Legal Studies

The dual forces of globalization and support for diversity in the legal profession are responsible for significant growth among U.S. law firms. Both women lawyers and those educated outside of the U.S. have been important elements facilitating the global trajectories of U.S. firms, but the interaction between the two has not been the subject of substantial research. We address this gap by drawing on an original dataset of lawyer biographies, and consider whether career strategies that involve the international mobility of lawyers are equally powerful for women and men. Our research suggests that globalization of large firm practice has not …

Women In The Legal Profession, 1970-2010: A Study Of The Global Supply Of Lawyers, Ethan Michelson

Indiana Journal of Global Legal Studies

This article represents the first effort to measure the changing global supply and composition of lawyers over a period of several decades. In it I assemble data on lawyer populations and gender compositions from eighty-six countries and use them to calculate estimates for the rest of the world in order to paint a truly global picture of the changing supply of lawyers in general and of female lawyers in particular. Most of the data supporting my analyses come from a unique and hitherto untapped source: individual-level census data. Results reveal a clear sequence in the global process of lawyer feminization. …

Parenthood Status And Compensation In Law Practice, Nancy Reichman, Joyce Sterling

Indiana Journal of Global Legal Studies

This article asks how cultural frameworks of status influence the evaluation of performance including compensation and advancement of lawyers who were seven years into their practice. We borrow from the work on status expectations that goes beyond gender distinctions and assesses whether the concept of motherhood has a negative impact on assessment of female lawyers. Status expectations theory hypothesizes that mothers are valued less because they are less committed to the workplace and thus receive a motherhood penalty while men receive a fatherhood bonus in compensation decisions. Employing data from the After The JD study, we test the impact of …

The Impact Of The Economic Downturn On Women Lawyers In The United States, Cynthia Fuchs Epstein, Abigail Kolker

Indiana Journal of Global Legal Studies

Although women have made considerable inroads in the legal profession over the past four decades, a review of their distribution in various types of practice in the United States shows that, compared to their male colleagues, they have been affected disproportionately by the recent economic downturn, although not in every sphere of the profession. This study reviews research, articles in the legal press, and online blogs that report women's access to equity partnerships has been stalled, their representation in part-time employment has increased, and they are disproportionately recruited or diverted to positions as staff or contract attorneys. Women's access to …

Gender And Difference Among Brazilian Lawyers And Judges: Public And Private Practice In The Global Periphery, Maria Da Gloria Bonelli

Indiana Journal of Global Legal Studies

This article examines the ways in which Brazilian lawyers and judges experience difference. It focuses on how gender and diversity intersect in identity formation among women and men in public and private practice in the state of Sdo Paulo, Brazil. In attempting not to attach one fixed meaning to the concept of difference, the research works with Avtar Brah's typology, which aids in detecting how difference is perceived and experienced by the interviewees. The results provide a look at the specificities of professional practice in the global periphery, comparing the gender composition of law firms and gender stratification within legal …

Leaving Private Practice: How Organizational Context, Time Pressures, And Structural Inflexibilities Shape Departures From Private Law Practice, Fiona M. Kay, Stacey Alarie, Jones Adjei

Indiana Journal of Global Legal Studies

Numerous studies document women's overrepresentation among those leaving the profession of law. Although research has documented high turnover among women lawyers, particularly from private practice, only a handful of studies have explored the factors precipitating the decision to leave. The main causal factors identified to date include difficulties associated with combining family life and law practice and problems of discrimination and blocked career advancement. In this paper, we analyze data from a longitudinal study of nearly 1,600 Canadian lawyers, surveyed across a twenty-year period. Using survival models to estimate the timing of transitions out of private practice, we examine factors …