Law Commons^™

Whose Truth? Objective And Subjective Perspectives On Truthfulness In Advocacy, W. Bradley Wendel

Cornell Law Faculty Working Papers

A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client’s ends. Although in law school it may seem that the law that is open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court’s review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources …

Courtroom Technology, Jessica Moyeda

Cornell Law School J.D. Student Research Papers

Courtroom technology, like all technology, will continue to change and, hopefully, improve. Technology can be an amazingly helpful resource, but it is only a tool. As lawyers develop and adapt to changes in technology, they must also remember to make efficient and effective use of these tools, to acquire the necessary training, and remember their obligation to the client.

Cloud Computing, Virtual Law Firms, And The Legal Profession, Dillon Horne

Cornell Law School J.D. Student Research Papers

What does the future hold for cloud computing, virtual law firms, and the legal profession? Like so many answers in the legal field, it depends. The increasing costs of storing ever-increasing amounts of information may force firms to turn to housing data off-site through cloud-based services. New technologies, yet unforeseen, may render the cloud obsolete, replaced by a new form of caching materials. Virtual law firms may be looked back at five years from now as an obsolete fad, or the practice might instead become the new normal. Wherever the legal profession ventures, lawyers must do a better job of …

"Out, Damned [Metadata]!", Emily Shaw

Cornell Law School J.D. Student Research Papers

We live in exciting times; technology is evolving quickly. The legal profession, however, has a history of begrudging and delayed acceptance of new technology. Attorneys may be slow to learn new tricks, but when it comes to metadata, the usual reactionary behavior could be harmful to clients. It is imperative that attorneys understand the ethical and evidentiary issues that arise when metadata is disclosed, mishandled, discovered, or destroyed. This paper explores these issues and recommends best practices to avoid inadvertent disclosures and ethical violations. The structure of this paper is as follows: first, metadata is defined and explained. Second, I …

In Search Of Core Values, W. Bradley Wendel

Cornell Law Faculty Publications

A consensus appears to have emerged among American lawyers that globalization and information technology are transforming the practice of law in fundamental ways. In particular, non-lawyers are increasingly involved in what has traditionally been defined as the practice of law. Scholars such as Richard Susskind, in the United Kingdom, and Thomas Morgan, in the United States, have hypothesized that lawyers may be going the way of wheelwrights, cordwainers or mercers (traders in fine cloths and silks), and that one day in the not-so-distant future we will consider the profession of lawyer as something to be studied historically, wonder why lawyers …

How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and …

Jury Jokes And Legal Culture, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf

Cornell Law Faculty Publications

In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …

Attorney Fees And Expenses In Class Action Settlements: 1993–2008, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

We report on a comprehensive database of 18 years of available opinions (1993–2008, inclusive) on settlements in class action and shareholder derivative cases in state and federal courts. An earlier study, covering 1993–2002, revealed a remarkable relationship between attorney fees and class recovery size: regardless of the methodology for calculating fees ostensibly employed by the courts, the class recovery size was the overwhelmingly important determinant of the fee. The present study, which nearly doubles the number of cases in the database, confirms that relationship. Fees display the same relationship to class recoveries in both data sets and neither fees nor …

Original Sin And Judicial Independence: Providing Accountability For Justices, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Moral Judgment And Professional Legitimation, W. Bradley Wendel

Cornell Law Faculty Publications

In this essay I would like to consider the nature of the role of lawyers from the point of view of both jurisprudence and the sociology of professions. From this perspective it is apparent that the judgment characteristic of lawyers' expertise is not primarily the exercise of ethical discretion. Rather, it is the application of legal norms, which may incorporate moral principles by reference, but which are analytically distinct from morality. The task of legal education, and specifically of legal ethics education, might include training lawyers to be better at making moral judgments. In fact, there has been a fairly …

Counseling Organizational Clients "Within The Bounds Of The Law", Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Institutional And Individual Justification In Legal Ethics: The Problem Of Client Selection, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

What's Wrong With Being Creative And Aggressive?, W. Bradley Wendel

Cornell Law Faculty Publications

When I tell people that I am a law professor specializing in legal ethics, they usually have one of two reactions: “Legal ethics—that’s an oxymoron!” or “I bet you always have a lot to do.” The second reaction is the more interesting of the two, because it rightly implies that legal ethics is a fascinating field, in part because lawyers are always thinking of new ways to get into trouble. Many run-of-the-mill lawyer disciplinary cases involve simple wrongdoing, such as stealing from client funds, which does not present conceptually interesting issues. Contemporary high-profile legal ethics scandals, by contrast, are made …

The Future Of Law Practice In The United States, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Recalling The Legal Services Corporation’S Critical First Steps, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Reflections On Lee, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

Implicit Racial Attitudes Of Death Penalty Lawyers, Theodore Eisenberg, Sheri Lynn Johnson

Cornell Law Faculty Publications

Defense attorneys commonly suspect that the defendant's race plays a role in prosecutors' decisions to seek the death penalty, especially when the victim of the crime was white. When the defendant is convicted of the crime and sentenced to death, it is equally common for such attorneys to question the racial attitudes of the jury. These suspicions are not merely partisan conjectures; ample historical, statistical, and anecdotal evidence supports the inference that race matters in capital cases. Even the General Accounting Office of the United States concludes as much. Despite McCleskey v. Kemp, in which the United States Supreme Court …

Attorney Fees In Class Action Settlements: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Study of two comprehensive class action case data sets covering 1993-2002 shows that the amount of client recovery is overwhelmingly the most important determinant of the attorney fee award. Even in cases in which the courts engage in the lodestar calculation (the product of reasonable hours and a reasonable hourly rate), the client's recovery generally explains the pattern of awards better than the lodestar. Thus, the time and expense of a lodestar calculation may be wasteful. We also find no robust evidence that either recoveries for plaintiffs or fees of their attorneys increased overtime. The mean fee award in common …

Civil Obedience, W. Bradley Wendel

Cornell Law Faculty Publications

Discussions of legal ethics generally assume that lawyers should deliberate straightforwardly on the basis of reasons to act or refrain from acting. This model of deliberation fails to account for the role of the law in resolving normative disagreement and coordinating social activity by people who do not share comprehensive ethical doctrines. The law represents a collective decision about what citizens ought to do, which replaces the reasons individuals would otherwise have to act. This Article contends that legal ethics ought to be understood as an aspect of this theory of the authority of law. On this account, lawyers have …

On International And Interdisciplinary Legal Ethics Scholarship, W. Bradley Wendel

Cornell Law Faculty Publications

"Legal Ethics is an international and interdisciplinary journal dedicated to the field of legal ethics." The mission statement of this journal poses three concise challenges for scholars in this discipline: To define the domain of legal ethics, to study it from a perspective that is valid across jurisdictional boundaries, and to incorporate the insights of related disciplines. As befits an emerging and exciting field, lawyers and university faculty throughout the English- speaking common-law world have begun to engage with all three of these problems. The book reviews section of Legal Ethics has highlighted the publication of many of the …

Busting The Professional Trust: A Comment On William Simon’S Ladd Lecture, W. Bradley Wendel

Cornell Law Faculty Publications

It is truly an honor to be asked to Comment on the work of William Simon, one of the scholars who has done the most to contribute to the reputation of legal ethics as a field with intellectual rigor and depth, as well as one with significant implications for legal theory generally. The power of his critical faculties is unmatched: the platitudes offered by the organized bar in defense of the dominant view of legal ethics lie in tatters after the sustained assault in the first three chapters of The Practice of Justice. In fact, it can be difficult …

Informal Methods Of Enhancing The Accountability Of Lawyers, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

What Is A Reasonable Attorney Fee? An Empirical Study Of Class Action Settlements, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Determining an appropriate fee is a difficult task facing trial court judges in class action litigation. But courts rarely rely on empirical research to assess a fee’s reasonableness, due, at least in part, to the relative paucity of available information. Existing empirical studies of attorney fees in class action cases are limited in scope, and generally do not control for important variables. To help fill this gap, we analyzed data from all state and federal class actions with reported fee decisions from 1993 to 2002 in which the fee and class recovery could be determined with reasonable confidence.

We find …

How I Learned To Stop Worrying And Love Lawyer-Bashing: Some Post-Conference Reflections, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Reason And Authority In Legal Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Regulation Of Lawyers Without The Code, The Rules, Or The Restatement: Or, What Do Honor And Shame Have To Do With Civil Discovery Practice?, W. Bradley Wendel

Cornell Law Faculty Publications

One of the most striking things to notice when "looking back" on the regulation of the legal profession is the relative absence of enforceable legal sanctions for unethical behavior by lawyers. Before the promulgation in 1970 of the ABA's Model Code of Professional Responsibility, regulation of the legal profession was largely a matter of a fraternal body taking care of its own, and occasionally expelling miscreants. Now, of course, there is a complex body of law, enforced by courts and regulatory authorities with overlapping jurisdiction, that governs a substantial amount of the day-to-day activities of lawyers.

The hypothesis I explore …

Our Love-Hate Relationship With Heroic Lawyers, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Ethics 2000 And Conflicts Of Interest: The More Things Change . . . ., Charles W. Wolfram

Cornell Law Faculty Publications

Comparative Multi-Disciplinary Practice Of Law: Paths Taken And Not Taken, Charles W. Wolfram

Cornell Law Faculty Publications

It is always an interesting journey to return to one's roots, and many of the most important of my personal and professional roots are here in Cleveland, including my birth and the first twenty years of life. Subsequent wanderings have taken me far from here, but always to return. We consider here another set of journeys and pathways that are institutional, not personal. The paths traversed are both national and international, and they will take us on journeys that are far from completed. They concern the ways in which various contemporary legal cultures have so far approached the subject of …