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Full-Text Articles in Law

Lawyers' Ethics In An Adversary System - Foreword: Like Gravity, Roy D. Simon Jan 2006

Lawyers' Ethics In An Adversary System - Foreword: Like Gravity, Roy D. Simon

Hofstra Law Review

The adversary system, like gravity, affects us all. We cannot escape it. The adversary system, and the ethical standards of the lawyers who operate within the adversary system, therefore warrant continual study. ...

This issue collects nearly all of the papers delivered at the conference. Of equal interest, each paper is followed by a transcript of the fascinating exchanges that occurred between the speaker and members of the audience during a lengthy question and answer session after each speech.


Foreword: Biomedical Reasearch And The Law-Selected Issues: The Pharmaceutical Industry And Its Relationship With Government, Academia, Physicians And Consumers, Janet L. Dolgin, Joel Weintraub Jan 2006

Foreword: Biomedical Reasearch And The Law-Selected Issues: The Pharmaceutical Industry And Its Relationship With Government, Academia, Physicians And Consumers, Janet L. Dolgin, Joel Weintraub

Hofstra Law Review

The articles in this issue developed from a conference entitled Biomedical Research and the Law, held at Hofstra University in the fall of 2006. The conference explored conflicts of interest created by industry's support for biomedical research. Participants considered how to safeguard the integrity of research and the safety of drugs while encouraging the development of treatments for disease.


Reconsidering The Corporate Attorney-Client Privilege: A Response To The Compelled-Voluntary Waiver Paradox, Lonnie T. Brown Jr. Jan 2006

Reconsidering The Corporate Attorney-Client Privilege: A Response To The Compelled-Voluntary Waiver Paradox, Lonnie T. Brown Jr.

Hofstra Law Review

Many within the legal profession are presently of the opinion that the protection traditionally accorded by the corporate attorney-client privilege is being seriously eroded, if not completely destroyed. This sentiment has largely been inspired by the perceived effect of government use of what I refer to as "compelled-voluntary" waiver in the context of investigations into corporate wrongdoing. Various governmental bodies employ this waiver device, but the United States Department of Justice ("DOJ") is perhaps the best known and certainly the most vilified.

The DOJ guidelines for prosecuting corporations, embodied first in the so-called "Holder Memorandum" and now in the "Thompson ...


Institutional And Individual Justification In Legal Ethics: The Problem Of Client Selection, W. Bradley Wendel Jan 2006

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

Hofstra Law Review

Monroe Freedman is well known as a proponent of the "standard conception" of legal ethics - that is, that a lawyer cannot be criticized in moral terms for actions taken in a representative capacity. Surprisingly, however, Freedman has argued that client selection is a decision for which a lawyer may be required to provide a justification in ordinary moral terms. This apparent inconsistency reveals a conceptual distinction in normative ethical theory, which is often blurred, between justifying a practice (in this case, the legal system or some specialized practice such as criminal defense) and justifying an action falling within the practice ...


"We'll Know It When We Can't Hear It": A Call For A Non-Pornography Test Approach To Recognizing Non-Public Information, J. Scott Colesanti Jan 2006

"We'll Know It When We Can't Hear It": A Call For A Non-Pornography Test Approach To Recognizing Non-Public Information, J. Scott Colesanti

Hofstra Law Review

Supreme Court Justice Potter Stewart once authored a concurring opinion in which he explained that, while he would not attempt to delineate pornographic materials, he knew pornography when he saw it.

Likewise, in the field of insider trading, the courts and others have embraced such pragmatism, namely, effectively transforming the test for identifying insider trading (trading while aware of "material" and "nonpublic" information) to a weighing of such considerations as whether the defendant had access to insiders, betrayed a confidence, and/or captured a profit. Such a pornography test approach - while satisfying on some level of expedience - fails to provide ...


Secret Evidence Is Slowly Eroding The Adversary System: Cipa And Fisa In The Courts, Ellen Yaroshefsky Jan 2006

Secret Evidence Is Slowly Eroding The Adversary System: Cipa And Fisa In The Courts, Ellen Yaroshefsky

Hofstra Law Review

No abstract provided.


The State Action Doctrine And The Principle Of Democratic Choice, Wilson R. Huhn Jan 2006

The State Action Doctrine And The Principle Of Democratic Choice, Wilson R. Huhn

Hofstra Law Review

The Supreme Court has badly misread the purpose of the state action doctrine. The Supreme Court has failed to recognize that the fundamental value that is served by the state action doctrine is not "individual freedom" but rather "democratic choice." As a result the Court has narrowly construed the concept of state action, and has underestimated the necessity of applying constitutional norms to the exercise of combined private and state power. The Supreme Court has also misconstrued the distinction between state action and state inaction. Once protective laws have been enacted through the democratic process state action exists, and constitutional ...


Contract Formalism, Scientism, And The M-Word: A Comment On Professor Movsesian's Under-Theorization Thesis, Jeffrey M. Lipshaw Jan 2006

Contract Formalism, Scientism, And The M-Word: A Comment On Professor Movsesian's Under-Theorization Thesis, Jeffrey M. Lipshaw

Hofstra Law Review

In two recent essays, Professor Mark L. Movsesian has suggested that a significant difference between the classical formalism of Williston and the formalism of contemporary contracts scholars is the extent to which the earlier work was under-theorized. I want to suggest an area in which there is a consistency to the under-theorization between the classical and the modern contract formalists: the extent to which theorization in anything that approaches metaphysics is, and has been, consistently anathema. Modern theorizing is overwhelmingly of a particular form: dispassionate social science inquiry into how we tick, rarely questioned but implicit norms shaped solely around ...


Direct-To-Consumer Advertising And Pharmaceutical Ethics: The Case Of Vioxx, Ronald M. Green Jan 2006

Direct-To-Consumer Advertising And Pharmaceutical Ethics: The Case Of Vioxx, Ronald M. Green

Hofstra Law Review

No abstract provided.


Reviving The Nuclear Power Option In The United States: Using Domestic Energy Law To Cure Two Perceptions Of International Law Illegality, James E. Hickey Jr. Jan 2006

Reviving The Nuclear Power Option In The United States: Using Domestic Energy Law To Cure Two Perceptions Of International Law Illegality, James E. Hickey Jr.

Hofstra Law Review

Two perceptions, right or wrong, of international law illegality on the part of the United States have arisen in the last few years with regard to both the use of military force in Iraq and to global warming. The first perception is that the United States invaded Iraq illegally to secure a significant source of foreign oil. The second perception is that the United States ignores the letter and spirit of the evolving international climate change regime to reduce greenhouse gas ("GHG") emissions.

Both perceptions of international law illegality directly reflect the domestic growth energy policy of the United States ...


The Nature And Impact Of The "Tort Reform" Movement, F. Patrick Hubbard Jan 2006

The Nature And Impact Of The "Tort Reform" Movement, F. Patrick Hubbard

Hofstra Law Review

For over thirty years, repeat players on the defense side of tort litigation have undertaken to "reform" tort doctrine in their favor. Initially, these efforts consisted of ad hoc efforts to address a series of "crises," primarily in terms of the cost and availability of liability insurance. In the 1980s, the tort reform movement began to develop a more permanent institutionalized approach to the push for "reform." Not surprisingly, there has been considerable debate about the goals of this movement, the fairness or efficiency of the specific doctrinal reforms it seeks, and the methods it uses. This Article places this ...


Evolving Evidentiary Needs: A Neglected Responsibility, Paul R. Rice Jan 2006

Evolving Evidentiary Needs: A Neglected Responsibility, Paul R. Rice

Hofstra Law Review

No abstract provided.


The Fight To Safeguard American Drug Safety In The Twenty-First Century, Maurice Hinchey Jan 2006

The Fight To Safeguard American Drug Safety In The Twenty-First Century, Maurice Hinchey

Hofstra Law Review

No abstract provided.


Debating Conflicts: Medicine, Commerce, And Contrasting Ethical Orders, Janet L. Dolgin Jan 2006

Debating Conflicts: Medicine, Commerce, And Contrasting Ethical Orders, Janet L. Dolgin

Hofstra Law Review

This article, prepared in the context of a conference at Hofstra in October 2006 ("Biomedical Research and the Law") considers contrasting responses to conflicts of interest occasioned by physicians' financial links to the pharmaceutical industry. Debate about the appropriate relationship between physicians and industry is grounded in the development known to historians of ideas as the shift in western culture from status to contract. The article summarizes the shift and then describes its consequences for and effects within the world of health care. The paper focuses on comparing an ethical order that continues to reflect traditional patterns in directing physicians ...


Power As A Factor In Lawyers' Ethical Deliberation, Susan D. Carle Jan 2006

Power As A Factor In Lawyers' Ethical Deliberation, Susan D. Carle

Hofstra Law Review

A fundamental disagreement among legal ethics scholars concerns the difference between client-centered and justice-centered approaches to lawyers' ethical obligations. Advocates of client-centered approaches put lawyers' duty to the client first. Justice-centered theorists critique the elevation of the client's interests over other important concerns lawyers affect through the work they do on behalf of clients. Scholars who adopt justice-centered approaches argue that lawyers' ethical obligations should be analyzed with a paramount focus on achieving justice.

Legal ethicists often view these two approaches as inconsistent with each other, but I argue in this Article that they are not necessarily so. Building ...


Peril Invites Rescue: An Evolutionary Perspective, Bailey Kuklin Jan 2006

Peril Invites Rescue: An Evolutionary Perspective, Bailey Kuklin

Hofstra Law Review

No abstract provided.


The Use Of Mackinnon's Dominance Feminism To Evaluate And Effectuate The Advancement Of Women Lawyers As Leaders Within Large Law Firms, Amanda J. Albert Jan 2006

The Use Of Mackinnon's Dominance Feminism To Evaluate And Effectuate The Advancement Of Women Lawyers As Leaders Within Large Law Firms, Amanda J. Albert

Hofstra Law Review

No abstract provided.


Bias In Direct-To-Consumer Advertising And Its Effect On Drug Safety, Marvin M. Lipman Jan 2006

Bias In Direct-To-Consumer Advertising And Its Effect On Drug Safety, Marvin M. Lipman

Hofstra Law Review

No abstract provided.


Medical Ethical Considerations In Collaborative Research, Samuel Packer Jan 2006

Medical Ethical Considerations In Collaborative Research, Samuel Packer

Hofstra Law Review

No abstract provided.


You Can't Choose Your Parents: Why Children Raised By Same-Sex Couples Are Entitled To Inheritance Rights From Both Their Parents, Carissa R. Trast Jan 2006

You Can't Choose Your Parents: Why Children Raised By Same-Sex Couples Are Entitled To Inheritance Rights From Both Their Parents, Carissa R. Trast

Hofstra Law Review

No abstract provided.


Timing Controversial Decisions, Cass R. Sunstein Jan 2006

Timing Controversial Decisions, Cass R. Sunstein

Hofstra Law Review

No abstract provided.


The Zeal Shortage, Anita Bernstein Jan 2006

The Zeal Shortage, Anita Bernstein

Hofstra Law Review

Although the duty of zealous advocacy enjoys nominal approval in most state bar rules and the secondary literature, today the majority of writings about zeal in the practice of law present zeal in a negative light. Critics use this word to object to lawyers' dishonesty, hyperpartisanship, aggressive or confrontational work styles, rudeness, and disregard for the interests of adversaries, the courts, and the public. This article, part of a Hofstra University symposium, builds on the literature that praises zealous advocacy (much of it written by symposium honoree Monroe Freedman) to identify a shortage of zeal in American legal practice and ...


An Old Means To A Different End: The War On Terror, American Citizens... And The Treason Clause, Benjamin A. Lewis Jan 2006

An Old Means To A Different End: The War On Terror, American Citizens... And The Treason Clause, Benjamin A. Lewis

Hofstra Law Review

No abstract provided.


Big Talk, Broken Promises: How Title I Of The Americans With Disabilities Act Failed Disabled Workers, Melanie D. Winegar Jan 2006

Big Talk, Broken Promises: How Title I Of The Americans With Disabilities Act Failed Disabled Workers, Melanie D. Winegar

Hofstra Law Review

No abstract provided.


The Supreme Court Will Not Overrule Roe V. Wade, Robert A. Sedler Jan 2006

The Supreme Court Will Not Overrule Roe V. Wade, Robert A. Sedler

Hofstra Law Review

In this Idea, Professor Sedler, who litigated the Kentucky version of Roe v. Wade for the ACLU of Kentucky while on the faculty of the University of Kentucky, gives his opinion as to why the Supreme Court will not overrule Roe v. Wade. The Idea is based on an op-ed that ProfessorSedler published in the Detroit Free Press in connection with the nomination of Chief Justice John Roberts to the Supreme Court.

Professor Sedler maintains that the Court is not likely to overrule Roe v. Wade for two related reasons. The first reason goes to the operation of the Court ...


A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg Jan 2006

A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg

Hofstra Law Review

Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The ...


Henry Lord Brougham And Zeal, Monroe H. Freedman Jan 2006

Henry Lord Brougham And Zeal, Monroe H. Freedman

Hofstra Law Review

In a recent article, Professors Fred Zacharias and Bruce Green undertook to "reconceptualize" advocacy ethics. In the course of that article, they rejected the ethic of zeal, and stated erroneously that Henry Lord Brougham had himself repudiated his famous statement on zealous advocacy.

Inspired by Brougham almost two centuries ago, the "traditional aspiration" of zealous advocacy remains "the fundamental principle of the law of lawyering" and "the dominant standard of lawyerly excellence" among lawyers today. To paraphrase the ABA's 1908 Canons of Professional Ethics, the ethic of zeal requires that the lawyer give entire devotion to the interests of ...


Judicial Ethics, The Appearance Of Impropriety, And The Proposed New Aba Judicial Code, Ronald D. Rotunda Jan 2006

Judicial Ethics, The Appearance Of Impropriety, And The Proposed New Aba Judicial Code, Ronald D. Rotunda

Hofstra Law Review

We sometimes think, loosely, that ethics is good and that therefore more is better than less. But more is not better than less, if the more exacts higher costs, measured in terms of vague rules that impose unnecessary and excessive burdens. Overly-vague ethics rules impose costs on the judicial system and the litigants, which we should weigh when determining whether to impose ill-defined and indefinite ethics prohibitions on judges. Unnecessarily imprecise ethics rules allow and tempt critics, with minimum effort, to levy a plausible and serious charge that the judge has violated the ethics rules. Overuse not only invites abuse ...