Law Commons^™

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 …

Charting Your Own Path: Anurima Bhargava's Lawyer-Leadership In Action, Davis Polk Leadership Initiative

Davis Polk Leadership Initiative

Anurima Bhargava (CLS ’02) is an accomplished civil rights lawyer who has served as Chief ofthe Educational Opportunities Section of the Civil Rights Division at the U.S. Department ofJustice and Director of the Education Practice at the NAACP Legal Defense Fund. She is theFounder and Director of Anthem of Us, a strategic advisory and consulting firm that promotesdignity and justice in workplaces, schools, and communities, the Chair of the U.S. Commissionon International Religious Freedom, and produces and advises on documentary films.Throughout her career, Anurima has served on numerous task forces and working groups,including the White House Task Force to Prevent …

Community-Based Policymaking: Effecting Policy Change Through Lawyer-Leadership, Davis Polk Leadership Initiative

Davis Polk Leadership Initiative

Two years out of law school and equipped with Columbia Law School’s Lowenstein Fellowship,which supported her pursuit of a public interest career, Gabriella Barbosa (CC ’08, CLS ’13) began working as a Policy Director at Los Angeles Unified School District (LAUSD) in District 5.Upon joining, Gabriella and her supervisor formed a parent engagement committee of parentrepresentatives, grassroots organizations, and district leaders to identify and address concernsabout the schools in District 5 through systemic policy reform.

During an early meeting of the Committee, participants from one of the grassrootsorganizations in attendance, Parent Organization Network (PON), raised the issue of DisruptivePerson Letters …

Partnering For Change: Lawyer-Leadership In The Manhattan Da's Office, Davis Polk Leadership Initiative

Davis Polk Leadership Initiative

In April 2021, the Manhattan DA’s Office announced that it would stop prosecuting theoffenses of prostitution and loitering for the purpose of prostitution. The Office shifted itspolicy, the first of its kind in New York State and one of the first in the nation, in an effort tominimize contact with the criminal justice system and the adverse consequences of arrest andconviction for these offenses. The Office promptly moved to dismiss nearly 6,000 pendingcases.

The policy shift was years in the making — the result of careful exploration of alternatives incollaboration with affected communities in the face of strong competing values …

Innovation In A Time Of Uncertainty: Lawyer-Leadership At Davis Polk And Wardwell Llp, Davis Polk Leadership Initiative

Davis Polk Leadership Initiative

In Fall 2009, Gabe Rosenberg was a first-year associate at Davis Polk and Wardwell LLP. Equipped with a master’s degree in applied mathematics and a newly-minted law degree, Rosenberg joined the Financial Institutions Group at a time when the firm and its clients were working hard to make sense of a rapidly changing regulatory environment following the 2008 financial crisis. It was this evolving regulatory complexity the firm and its clients faced that presented an opportunity for Gabe and one of the senior partners with which he worked, Meg Tahyar, to exercise lawyer-leadership.

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Productions, Inc. v. McDonald’s Corp. ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonald’s characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software code. …

In-House Master Class: At Columbia, Former Gc Of Facebook Is Bringing The Real World Into The Classroom, Sue Reisinger, Mp Mcqueen

Reuben Mark Initiative for Organizational Character and Leadership

If the purpose of law school is to train eager minds to “think like a lawyer,” then the purpose of a Columbia Law School seminar taught by former Facebook Inc. vice president and general counsel Colin Stretch is to teach them to think specifically like an in-house lawyer.

How Law Schools Are Encouraging Students To Go In-House, Michele Gorman

Reuben Mark Initiative for Organizational Character and Leadership

While speaking to Columbia Law School students, a former Con Edison general counsel shared a pro tip from her in-house career: It's up to corporate counsel to first understand the company's needs, and then help the business achieve those goals.

What Do Lawyers Contribute To Law & Economics?, Robert E. Scott, George G. Triantis

Faculty Scholarship

The law-and-economics movement has transformed the analysis of private law in the United States and, increasingly, around the world. As the field developed from 1970 to the early 2000s, scholars have developed countless insights about the operation and effects of law and legal institutions. Throughout this period, the discipline of law-and-economics has benefited from a partnership among trained economists and academic lawyers. Yet the tools that are used derive primarily from economics and not law. A logical question thus demands attention: what role do academic lawyers play in law-and-economics scholarship? In this Essay, we offer an interpretive theory of the …

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

The textbook model of commercial contracts between sophisticated parties holds that terms are proposed, negotiated and ultimately priced by the parties. Parties reach agreement on contract provisions that best suit their transaction with the goal of maximizing the joint surplus from the contract. The reality, of course, is that the majority of the provisions in contemporary commercial contracts are boilerplate terms derived from prior transactions and even the most sophisticated contracting parties pay little attention to these standard terms, focusing instead on the price of the transaction. With standard-form or boilerplate contracts, this dynamic of replicating by rote the terms …

Taking Compliance Seriously, John Armour, Jeffrey N. Gordon, Geeyoung Min

Faculty Scholarship

How can we ensure corporations play by the “rules of the game” – that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives – through discounts to penalties – to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance.

We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon …

Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah S. Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman

Faculty Scholarship

We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it …

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter

Faculty Scholarship

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the …

The State's Role In The Regulation And Provision Of Legal Services In South Africa And The United States: Supporting, Nudging Or Interfering?, Helen Kruuse, Philip Genty

Faculty Scholarship

An independent legal profession is said to be “the bulwark of a free and democratic society.” It is also said that a high measure of independence of mind and action by legal actors is necessary for the maintenance of the rule of law. However, too often, there is the allegation (within the sociological literature in particular) that the legal profession has used the concepts of independence and the rule of law as a shield or cuirass rather than as a sword. The image of lawyers representing unpopular clients fearlessly and advocating on behalf of unpopular causes, so as to uphold …

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

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.

Accounting For Prosecutors, Daniel C. Richman

Faculty Scholarship

What role should prosecutors play in promoting citizenship within a liberal democracy? And how can a liberal democracy hold its prosecutors accountable for playing that role? Particularly since I’d like to speak in transnational terms, peeling off a distinctive set of potential “prosecutorial” contributions to democracy – as opposed to those made by other criminal justice institutions – is a challenge. Holding others – not just citizens but other institutions – to account is at the core of what prosecutors do. As gatekeepers to the adjudicatory process, prosecutors shape what charges are brought and against whom, and will (if allowed …

The Organization Of Prosecutorial Discretion, William H. Simon

Faculty Scholarship

Contemporary understanding of prosecutorial discretion is influenced by anachronistic conceptions of judgment and organization. These conceptions have lost ground dramatically in professions like medicine, teaching, and social work. Yet, they remain prominent to a unique degree in law. They are embedded both in the general professional culture and in legal doctrine. Innovative prosecutorial practices have emerged in recent decades, but their progress has been inhibited by attachment to these older conceptions.

The older conceptions understand professional judgment as a substantially tacit and ineffable decision by a single professional grounded in a relatively static and comprehensive discipline. The associated model of …

Is The Future Of Law A Driverless Car? Assessing How The Data Analytics Revolution Will Transform Legal Practice, Eric L. Talley

Faculty Scholarship

Machine learning and artificial intelligence technologies (“data analytics”) are quickly transforming research and practice in law, raising questions of whether the law can survive as a vibrant profession for natural persons to enter. In this article, I argue that data analytics approaches are overwhelmingly likely to continue to penetrate law, even in domains that have heretofore been dominated by human decision makers. As a vehicle for demonstrating this claim, I describe an extended example of using machine learning to identify and categorize fiduciary duty waiver provisions in publicly disclosed corporate documents. Notwithstanding the power of machine learning techniques, however, I …

The Role Of Language Interpretation In Providing A Quality Mediation Process, Alexandra Carter, Shawn Watts

Faculty Scholarship

This paper focuses on the role of language in mediation and the challenges multiple language fluencies bring to the practice. Beginning with a discussion of the process and ethics of mediation as a form of alternative dispute resolution, as distinct from other forms of dispute resolution including arbitration, the paper shifts to consider the importance of language. Language, and more specifically interpretation, plays a central role in the integrity of the mediation process and the quality of its outcomes. Each stage of mediation requires the participants and the mediator understand one another to ensure effective communication and a quality process. …

Can A Little Representation Be A Dangerous Thing?, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases and …

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.

Teaching The Newly Essential Knowledge, Skills, And Values In A Changing World, Eliza Vorenberg, Cynthia F. Adcock, Eden E. Harrington, Elizabeth Kane, Lisa Bliss, Robin Boyle, Conrad Johnson, Susan Schechter, David Udell

Faculty Scholarship

This chapter of Building on Best Practices: Transforming Legal Education in a Changing World has contributions from many authors:

• Section A, Professional Identity Formation, includes:
  • Teaching Knowledge, Skills, and Values of Professional Identity Formation, by Larry O. Natt Gantt, II & Benjamin V. Madison III,
  • Integrating Professionalism into Doctrinally-Focused Courses, by Paula Schaefer,
  • Learning Professional Responsibility, by Clark D. Cunningham, and
  • Teaching Leadership, by Deborah L. Rhode.
• Section B, Pro Bono as a Professional Value, is by Cynthia F. Adcock, Eden E. Harrington, Elizabeth Kane, Susan Schechter, David S. Udell & Eliza Vorenberg.
• Section C, The Relational Skills of the …

Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan

Faculty Scholarship

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …

The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen

Faculty Scholarship

This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.

Our Place In The World: A New Relationship For Environmental Ethics And Law, Jedediah S. Purdy

Faculty Scholarship

Forty years ago, at the birth of environmental law, both legal and philosophical luminaries assumed that the new field would be closely connected with environmental ethics. Instead, the two grew dramatically apart. This Article diagnoses that divorce and proposes a rapprochement. Environmental law has always grown through changes in public values; for this and other reasons, it cannot do so without ethics. Law and ethics are most relevant to each other when there are large open questions in environmental politics: lawmakers act only when some ethical clarity arises; but law can itself assist in that ethical development. This process is …

Educating The Invincibles: Strategies For Teaching The Millennial Generation In Law School, Emily Benfer, Colleen F. Shanahan

Faculty Scholarship

Each new generation of law students presents its own set of challenges for law teachers seeking to develop competent and committed members of the legal profession. This article aims to train legal educators to recognize their students' generational learning style and to deliver a tailored education that supports the development of skilled attorneys. To help legal educators better understand the newest generation of law students, this article explores the traits associated with the Millennial Generation of law students, including their perspective on themselves and others, on education and on work. It then provides detailed and specific strategies for teaching millennial …