Law Commons^™

Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe

Articles & Chapters

The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many …

The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace

Articles & Chapters

Pro bono service is embedded in legal education and practice. Every year, lawyers and law students across the United States engage in countless hours of pro bono service. There are over 1.3 million lawyers in the country and more than one hundred thousand law students enrolled in law school. Lawyers perform an average of thirty-seven hours of pro bono work each year. They reference several factors that motivate them to perform this work but the desire to help people in need ranks highest. Professional duty is also listed as an important factor for lawyers choosing to perform pro bono work. …

Impeaching Legal Ethics, Bruce Green, Rebecca Roiphe

Articles & Chapters

In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …

Lawyering 'Twisties': Naming And Untangling Performance Anxiety, Heidi K. Brown

Articles & Chapters

No abstract provided.

Exploring The Interpretation And Application Of Procedural Rules: The Problem Of Implicit And Institutional Racial Bias, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

Healthy Hives: Can Replacing Hierarchies With Intergroup Teams Transform Our Profession?, Heidi K. Brown

Articles & Chapters

No abstract provided.

Access Denied: How 28 U.S.C. Sec. 1915(G) Violates The First Amendment Rights Of Indigent Prisoners, Molly Guptill Manning

Articles & Chapters

No abstract provided.

"Man Is Opposed To Fair Play": An Empirical Analysis Of How The Fifth Circuit Has Failed To Take Seriously Atkins V. Virginia, Michael L. Perlin, Talia Roitberg Harmon, Sarah Wetzel

Articles & Chapters

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty. Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could …

Women Lawyers For Social Causes, Frank W. Munger, Peerawich Thoviriyavej, Vorapitchaya Rabiablok

Articles & Chapters

Women lawyers are increasing seen among the leading legal defenders of human rights and social movements in Thailand. Increasing visibility is partly a result of news coverage and social media, but women lawyers activism has far older roots. In this article, we examine two related processes of change that contribute to women’s emergence as leading social cause practitioners. First, we discuss the relationship between Thailand’s legal system and its social and political development since the end of the nineteenth century. Second, we employ career narratives of three women lawyers with innovative practices for social causes as a lens through which …

Power And Possibility In The Era Of Right To Counsel, Robust Rent Laws & Covid-19, Erica Braudy, Kim Hawkins

Articles & Chapters

New York City (NYC) finds itself in an unprecedented housing crisis as the coronavirus (COVID-19) pandemic reveals with devastating force that safe, sustainable and affordable housing is both a human right and a public health necessity. The profound humanitarian and economic devastation of COVID-19 puts millions of New Yorkers at risk of eviction especially those within Black and Latinx communities. In addition, the pandemic hit just as the legal landscape for tenants was transformed through landmark legislation ensuring the Right to Counsel in eviction proceedings and sweeping reforms of New York's rent laws. The unparalleled COVID-19 pandemic, the influx of …

How To Train Your Supervisor, Kris Franklin, Paula J. Manning

Articles & Chapters

In an ideal world every meeting between law students and professors, or between beginning lawyers and their supervisors, would leave supervisors impressed by their charges and junior lawyers/students with a clear sense of direction for their work. But we do not live in that ideal world. Instead, supervisors, supervisees, law professors and law students frequently leave such meetings feeling frustrated, disconnected and without a shared understanding of how to improve the experience (and future performance).

This Article seeks to improve supervisory meetings, and to do so from the perspective of the ones under supervision. There is a genuine art to …

Finding Your 'Flow', Heidi K. Brown

Articles & Chapters

From drinking from a fire hose to achieving our peak state.

Preparing Lawyers For Practice: Developing Cultural Competency, Communication Skills, And Content Knowledge Through Street Law Programs, Ben Perdue, Amy Wallace

Articles & Chapters

Street Law is a legal education methodology designed to increase civic engagement, critical thinking skills, and develop practical legal knowledge in non-lawyers. Law students at Georgetown began using Street Law methods to teach high school classes in the 1970s. While Street Law was designed to help high school students, the programs were also crafted to provide authentic experiential opportunities for law students. However, little research had been done to measure the educational benefits for those law students. We designed the study that is featured in the article to assess those goals. We conclude that Street Law provides significant and often …

Pandemic Pause, Heidi K. Brown

Articles & Chapters

Some lessons we can learn as a profession.

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe

Articles & Chapters

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between …

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Articles & Chapters

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

Defusing Bullies, Heidi K. Brown

Articles & Chapters

No abstract provided.

Navigating Introvert Hell, Heidi K. Brown

Articles & Chapters

You don’t have to be hard-charging to be an impactful legal networker.

Fear And Lawyering, Heidi K. Brown

Articles & Chapters

Create a work culture of ‘psychological safety’ that encourages taking intellectual and creative risks.

Face Fear—Don’T Fake It, Heidi K. Brown

Articles & Chapters

No abstract provided.

Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa Grumet

Articles & Chapters

In all fifty states, the State Attorney General (SAG) — as the state’s chief legal officer — is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional — an action scholars describe as “nondefense” — the SAG ordinarily will disclose this decision to the public.

This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus …

Are Make Believes Juries As Good For Prosecutors As Real Ones, Rebecca Roiphe

Articles & Chapters

No abstract provided.

A Man Of Ubuntu: A South African Colleague's Tribute To Stephen Ellmann, Penelope Andrews

Articles & Chapters

In Memoriam: Stephen Ellmann

Temptation's Page Flies Out The Door: Navigating Complex Systems Of Disability And The Law From A Therapeutic Jurisprudence Perspective, Michael L. Perlin, Mehgan Gallagher

Articles & Chapters

This article considers the difficulties inherent in the navigation of the legal system and the disability system, difficulties made more complicated when these systems intersect. Although this problem is not a new one, remarkably, it has never been the subject of any legal scholarship. We argue here that it is futile to consider either system to be a uniform one, and that to make any sense of the underlying ambiguities, it is necessary to consider both the potential conflicts both between domestic and international law (using fitness to proceed to trial as a case example), and the conflicts between social …

Tribute To Professor Lewis R. Katz: Beloved Mentor, Global Visionary, Entrepreneur, Gerald Korngold

Articles & Chapters

No abstract provided.

Civility Reboot: Can Lawyers Learn To Be Nicer To One Another, Heidi K. Brown

Articles & Chapters

No abstract provided.

Visual Literacy For The Legal Profession, Richard K. Sherwin

Articles & Chapters

Digital technology has transformed the way we communicate in society. Swept along on a digital tide, words, sounds, and images easily, and often, flow together. This state of affairs has radically affected not only our commercial and political practices in society, but also the way we practice law.

Unfortunately, legal education and legal theory have not kept up. Inconsistencies and unpredictability in the way courts ascertain the admissibility of various kinds of visual evidence and visual argumentation, lapses in the cross examination of visual evidence at trial, and inadequately theorized notions of visual meaning and the epistemology of affect tell …

May Federal Prosecutors Take Direction From The President?, Bruce Green, Rebecca Roiphe

Articles & Chapters

Suppose the president sought to serve as prosecutor-in-chief telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president's direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president …

Distilling Fear, Heidi K. Brown

Articles & Chapters

No abstract provided.

Teaching Legal Technology, Camille Broussard, Kathleen Brown, Daniel Cordova, Sarah Mauldin

Articles & Chapters

No abstract provided.