Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 53

Full-Text Articles in Law

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm Jan 2019

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of ...


Attorney-Client Confidentiality: A Critical Analysis, William H. Simon Jan 2017

Attorney-Client Confidentiality: A Critical Analysis, William H. Simon

Faculty Scholarship

Attorney-client confidentiality doctrine is distinguished by its expansiveness and its rigid or categorical form. This brief essay argues that the rationales for these features are unpersuasive. It compares the “strong confidentiality” of current doctrine to a hypothetical narrower and more flexible “moderate confidentiality” and concludes that moderate confidentiality is more plausible. It is unlikely that current doctrine yields benefits that justify its costs.


Duties To Organizational Clients, William H. Simon Jan 2016

Duties To Organizational Clients, William H. Simon

Faculty Scholarship

Loyalty to an organizational client means fidelity to the substantive legal structure that constitutes it. Although this principle is not controversial in the abstract, it is commonly ignored in professional discourse and doctrine. This article explains the basic notion of organizational loyalty and identifies some mistaken tendencies in discourse and doctrine, especially the "Managerialist Fallacy" that leads lawyers to conflate the client organization with its senior managers. The article then applies the basic notion to some hard cases, concluding with a critical appraisal of the rationale for confidentiality with organizational clients.


Probabilistic Compliance, Alex Raskolnikov Jan 2016

Probabilistic Compliance, Alex Raskolnikov

Faculty Scholarship

Uncertain legal standards are pervasive but understudied. The key theoretical result showing an ambiguous relationship between legal uncertainty and optimal deterrence remains largely undeveloped, and no alternative conceptual approaches to the economic analysis of legal uncertainty have emerged. This Article offers such an alternative by shifting from the well-established and familiar optimal deterrence theory to the new and unfamiliar probabilistic compliance framework. This shift brings the analysis closer to the world of legal practice and yields new theoretical insights. Most importantly, lower uncertainty tends to lead to more compliant positions and greater private gains. In contrast, the market for legal ...


Family Defense And The Disappearing Problem-Solving Court, Jane M. Spinak Jan 2016

Family Defense And The Disappearing Problem-Solving Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts began to flourish in the early 1990s, most notably as drug treatment courts. Family Court Treatment Parts (FCTPs) were developed in the late 1990s in New York State, fully embracing the three key components of the problem-solving drug court model: (1) an activist judge who helps to fashion, and then closely monitor, dispositions; (2) a team of lawyers, social workers, and court personnel who try to identify and then work toward commons goals with the family; and (3) frequent and meaningful court appearances by relevant parties. This team model has challenged attorneys for the parents (and sometimes the ...


Dichotomy No Longer? The Role Of The Private Business Sector In Educating The Future Russian Legal Professions, Philip Genty Jan 2012

Dichotomy No Longer? The Role Of The Private Business Sector In Educating The Future Russian Legal Professions, Philip Genty

Faculty Scholarship

In his 1916 work The Law: Business or Profession?, Julius Henry Cohen describes an American legal system in which uniform standards for regulating, disciplining, and educating the profession are just beginning to be developed, albeit unevenly. In discussing the differences between a business and a profession, he argues that a profession requires a uniform set of standards to guide it in matters of ethics, as well as a system of rigorous legal education that includes a firm grounding in these ethical principles.

Perhaps most surprising for a book written in the early twentieth century – long before the study of ...


Medical Malpractice Mediation: Benefits Gained, Opportunities Lost, Carol B. Liebman Jan 2011

Medical Malpractice Mediation: Benefits Gained, Opportunities Lost, Carol B. Liebman

Faculty Scholarship

In the past decade, the United States healthcare system has begun to use mediation to facilitate communication between patients and physicians after an adverse medical event, to ease tensions among members of care-giving teams, to resolve medical malpractice claims, and to help family members and medical professionals make awesome and wrenching decisions at the end of life. Implementation of the Patient Protection and Affordable Care Act of 2010 will produce new controversies and increase the need for mediation. Patients, families, physicians, nurses, other healthcare professionals, and administrators will require help managing the disagreements that arise as they adapt to the ...


Role Differentiation And Lawyer's Ethics: A Critique Of Some Academic Perspectives, William H. Simon Jan 2010

Role Differentiation And Lawyer's Ethics: A Critique Of Some Academic Perspectives, William H. Simon

Faculty Scholarship

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The essay uses as a central reference point the "Mistake-of-Law" scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer's error I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an ...


Role Differentiation And Lawyers’ Ethics: A Critique Of Some Academic Perspectives, William H. Simon Jan 2009

Role Differentiation And Lawyers’ Ethics: A Critique Of Some Academic Perspectives, William H. Simon

Faculty Scholarship

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The discussion uses as a central reference point the “Mistake-of-Law” scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer’s error. I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an ...


Transparency Is The Solution, Not The Problem: A Reply To Bruce Green, William H. Simon Jan 2008

Transparency Is The Solution, Not The Problem: A Reply To Bruce Green, William H. Simon

Faculty Scholarship

I fear that the diffuse and ad hominem tendencies of Bruce Green's reply will distract attention from the core issues I sought to discuss.

First, I argued that issues of professional and academic integrity and accountability are raised when lawyers give advice with certain third-party effects under conditions of partial or complete secrecy. I proposed a variety of soft norms, including especially a presumptive duty of publicity.

Second, I criticized novel aggregate litigation arrangements applied by Leeds, Morelli & Brown (LM&B) in a series of campaigns involving many hundreds of clients, and I criticized the opinions of academic experts ...


The Past, The Present, And Future Of Legal Ethics: Three Comments For David Luban, William H. Simon Jan 2008

The Past, The Present, And Future Of Legal Ethics: Three Comments For David Luban, William H. Simon

Faculty Scholarship

David Luban helped invent the field of legal ethics some years ago; Legal Ethics and Human Dignity provides an opportunity to assess how it has developed. By way of both homage and critique, I offer three comments on central issues that the book raises: the nature of the moral foundations of lawyers' ethics; the relation of legal and ordinary moral norms in legal ethics decisions; and the relation of ethical norms and organization.

I associate the issue of moral foundations with the past because modern academic discussion of legal ethics began with this focus. The relationship between law and morals ...


The Market For Bad Legal Advice: Academic Professional Responsibility Consulting As An Example, William H. Simon Jan 2008

The Market For Bad Legal Advice: Academic Professional Responsibility Consulting As An Example, William H. Simon

Faculty Scholarship

Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore undiscussed ...


Litigation & Professional Responsibility: Is Overlawyering Overtaking Democracy?, David M. Schizer Jan 2008

Litigation & Professional Responsibility: Is Overlawyering Overtaking Democracy?, David M. Schizer

Faculty Scholarship

Welcome everyone. We're going to get started. I'm David Schizer, the Dean of Columbia Law School. I'm here to moderate the panel, and our panel's title is, of course, "Is Overlawyering Overtaking Democracy?"

Now, as the moderator I get to ask questions, and I'm going to start with a question of the audience. My question is, aside from me, how many people here have seen Jerry Seinfeld's new animated movie, Bee Movie? I've a six-year-old daughter, which explains why I did – okay, a couple of people. For the rest of the audience's ...


Legal Determinacy And Moral Justification, Jody S. Kraus Jan 2007

Legal Determinacy And Moral Justification, Jody S. Kraus

Faculty Scholarship

Since this is a conference on law and morality, and the topic of this panel is theories of contract law, I thought it particularly appropriate to ask how a theory of contract law can provide a moral justification for contract law. That question can be answered only by providing a more general account of how a legal theory can provide a moral justification for any area of the private law. In this preliminary Essay, I argue that in order morally to justify the private law, a theory of the private law must derive reasons from a normative political theory that ...


The Law School Matrix: Reforming Legal Education In A Culture Of Competition And Conformity, Susan P. Sturm, Lani Guinier Jan 2007

The Law School Matrix: Reforming Legal Education In A Culture Of Competition And Conformity, Susan P. Sturm, Lani Guinier

Faculty Scholarship

The recent energy for reforming legal education focuses on curricular changes that expand students' understanding of what law is, move beyond adjudication and the courtroom, introduce broader forms of knowledge, and develop a wider range of skills. These well-intentioned and carefully analyzed programmatic initiatives may nevertheless founder because of the cultural mismatch between these proposals and the institutions they seek to change.

In this essay we argue that successful reform requires taking account of the culture of competition and conformity that permeates law schools. By culture we mean the incentive structures and peer pressure, dominant rituals and unspoken habits of ...


The Market For Bad Legal Advice: Academic Professional Responsibility Consulting As An Example, William H. Simon Jan 2007

The Market For Bad Legal Advice: Academic Professional Responsibility Consulting As An Example, William H. Simon

Faculty Scholarship

Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore undiscussed ...


The Ethics Teacher's Bittersweet Revenge: Virtue And Risk Management, William H. Simon Jan 2006

The Ethics Teacher's Bittersweet Revenge: Virtue And Risk Management, William H. Simon

Faculty Scholarship

Insurance companies have come to play a role in professional responsibility compliance that rivals that of courts and disciplinary agencies. The insurers, however, depart from the judicial perspective of the traditional enforcement agencies. Instead, they take the risk management perspective that Anthony Alfieri describes.

I agree with Alfieri that risk management poses real dangers of cynicism and Babbittry. Nevertheless, I also see more upside than he does. The new perspective is valuable, not just as a strategy for attracting student attention, but as an antidote to real and basic deficiencies in mainstream ethics teaching and traditional professional practice. In this ...


Can Lawyers Wear Blinders? Gatekeepers And Third-Party Opinions, John C. Coffee Jr. Jan 2005

Can Lawyers Wear Blinders? Gatekeepers And Third-Party Opinions, John C. Coffee Jr.

Faculty Scholarship

The question in the title may seem to answer itself. But it does not; indeed, the question has been framed to explain my difficulty with Professor Schwarcz's position on third-party opinions. Frankly, Steven Schwarcz has taken a bold, tough position. Addressing what he sees as issues of "first impression," he asks "what it means for lawyers to issue legal opinions that create negative externalities," and "[i]f lawyers issuing legal opinions owe a duty to the public as well as to the opinion recipient." These are large, possibly even imponderable questions, but he answers them crisply and succinctly in ...


The Post-Enron Identity Crisis Of The Business Lawyer, William H. Simon Jan 2005

The Post-Enron Identity Crisis Of The Business Lawyer, William H. Simon

Faculty Scholarship

The practices and institutions of business lawyering are undergoing a reassessment and revision as radical as anything that has occurred since the late nineteenth century, when the modern professional association and the modern corporate law firm were born. The pace of change has intensified,but its directions remain contested. The articles in this colloquium depict a corporate bar torn between competing role conceptions along a variety of dimensions.


Earnings Management As A Professional Responsibility Problem, William H. Simon Jan 2005

Earnings Management As A Professional Responsibility Problem, William H. Simon

Faculty Scholarship

Not infrequently, managers of public companies propose to do things – rearrange their operations, restructure assets and liabilities, sell and buy property – solely for the purpose of achieving accounting effects they desire. Most often they want an increase in current reported earnings per share, though sometimes they prefer a current decrease in the earnings they would otherwise report when it will allow them to show a smoothly increasing pattern of earnings in the future.

Sometimes the desired effects require outright lying or violations of Generally Accepted Accounting Principles (GAAP), in which cases the maneuvers are plainly illegal. But even where they ...


Wrongs Of Ignorance And Ambiguity: Lawyer Responsibility For Collective Misconduct, William H. Simon Jan 2004

Wrongs Of Ignorance And Ambiguity: Lawyer Responsibility For Collective Misconduct, William H. Simon

Faculty Scholarship

Deliberate ignorance and calculated ambiguity are key recurring themes in modern scandals from Watergate to Enron. Actors, especially lawyers, seek to limit responsibility by avoiding knowledge and clear articulation. This essay considers this phenomenon from the point of view of both business organization and legal doctrine. Evasive ignorance and ambiguity seem endemic to a particular organizational model and to a traditional model of legal responsibility. Developments in both law and business, however, suggest that these models are being superceded. Many of the most dynamic businesses now emphasize practices of "transparency" designed to inhibit evasive ignorance and calculated ambiguity. A major ...


Equality And The Forms Of Justice, Susan Sturm Jan 2003

Equality And The Forms Of Justice, Susan Sturm

Faculty Scholarship

Justice and equality are simultaneously noble and messy aspirations for law. They inspire and demand collective striving toward principle, through the unflinching comparison of the "is" and the "ought." Yet, law operates in the world of the practical, tethered to the realities of dispute processing and implementation. The work of many great legal scholars and activists occupies this unstable space between principle and practice. Owen Fiss is one such scholar, attempting to straddle the world of the here-and-now and the imagined and then deliberately constructed future, the contours of which have been established during the founding moments of our constitutional ...


The Attorney As Gatekeeper: An Agenda For The Sec, John C. Coffee Jr. Jan 2003

The Attorney As Gatekeeper: An Agenda For The Sec, John C. Coffee Jr.

Faculty Scholarship

Section 307 of the Sarbanes-Oxley Act authorizes the SEC to prescribe "minimum standards of professional conduct" for attorneys "appearing or practicing" before it. Although the initial debate has focused on issues of confidentiality, this terse statutory provision frames and seemingly federalizes a much larger question: What is the role of the corporate attorney in public securities transactions? Is the attorney's role that of (a) an advocate, (b) a transaction cost engineer, or, more broadly, (c) a gatekeeper – that is, a reputational intermediary with some responsibility to monitor the accuracy of corporate disclosures? Skeptics of any gatekeeper role for attorneys ...


Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon Jan 2003

Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon

Faculty Scholarship

Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Legal doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. Under current doctrine, the lawyer's responsibilities differ strongly depending on whether the representation is characterized as 'joint" representation of the organization 's constituents or "entity" representation. This Article argues that the choice between the two characterizations often has been arbitrary and that the underlying differences between them have been misunderstood. With respect to entity representation, it criticizes a prominent tendency ...


Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon Jan 2003

Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon

Faculty Scholarship

Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.

The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the ...


Educating Citizens, Peter L. Strauss Jan 2002

Educating Citizens, Peter L. Strauss

Faculty Scholarship

Socrates and his followers, the Cynics among them, put great store in educating the youths who would become the leaders of the Athenian republic. The Athenians agreed that education of their youth was of the utmost importance for their state, and executed Soc-rates for corrupting them. As I thought about how these concluding remarks could do more than cast a pale reflection of the extraordinary learning and thought that have preceded them, talking about education leapt to mind.


"When Smoke Gets In Your Eyes": Myth And Reality About The Synthesis Of Private Counsel And Public Client, John C. Coffee Jr. Jan 2002

"When Smoke Gets In Your Eyes": Myth And Reality About The Synthesis Of Private Counsel And Public Client, John C. Coffee Jr.

Faculty Scholarship

A recurring fallacy in any debate over legal ethics or public policy is to assume that the particular problem under examination is unique and unprecedented. Expand one's field of vision, and precedents and analogs quickly turn up. This rule applies with special force to the debate over retention by state attorneys general of private counsel to represent them on a contingent fee basis in the recent litigation against the tobacco industry. Because this litigation produced a highly successful outcome, while most private litigation against the tobacco industry has not, some are led to the conclusion that this combination of ...


Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intra-Client Conflict, William H. Simon Jan 2002

Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intra-Client Conflict, William H. Simon

Faculty Scholarship

Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. The results have been inconsistent and often implausible. This article surveys current approaches and offers recommendations for improvement. It analyzes the distinction between "joint" representation and "entity" representation and argues that the differences between them should not be as great as conventional discussion assumes. With respect to the notion of "entity" representation, it criticizes a prominent tendency in the cases to conflate ...


The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon Jan 2002

The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon

Faculty Scholarship

Literalism is the doctrine that a facially accurate but knowingly deceptive statement does not violate prohibitions of falsehood and misrepresentation. This essay argues that Literalism has had greater legitimacy in professional responsibility than in other areas of law, but that it seems to be in terminal decline. It surveys the arguments for and against Literalism and concludes that its impending demise should be welcomed.


Lawyers And The Practice Of Workplace Equity, Susan Sturm Jan 2002

Lawyers And The Practice Of Workplace Equity, Susan Sturm

Faculty Scholarship

Lawyers involved in the pursuit of workplace equity are difficult to pigeon-hole. Of course, the practice of many employment lawyers conforms to conventional understandings of lawyers' roles. These lawyers litigate cases on behalf of management or employees, advise clients about their legal rights and obligations, and define their mission as avoiding liability or winning battles in court.But innovators have crafted interesting and dynamic roles that transcend the traditional paradigm. These innovators connect law, as it is traditionally understood, to the resolution of the underlying problems that create and maintain workplace inequity. Civil rights lawyers working in both public and ...