Law Commons^™

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

The St. Thomas Effect: Law School Mission And The Formation Of Professional Identity, Jennifer Wright

Jennifer Wright

The legal profession has long been criticized for declining standards of professionalism. Recent studies have pointed to the crucial role of legal education in forming the professional identity of lawyers. Law schools must take seriously their duty to intentionally and thoughtfully shape their students’ sense of what it means to be a lawyer and of how their professional identities will align and coexist with their other personal and ethical commitments. In this article, I examine a case study of one law school, the University of St. Thomas School of Law, whose self-proclaimed raison d’etre is to produce a “different kind …

October 11, 2008: Governor Palin Should Resign From The Ticket, Bruce Ledewitz

Hallowed Secularism

Blog post, “Governor Palin Should Resign from the Ticket“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider

Articles

Medicine is a Profession on which physicians rely for their livelihood and patients for their lives. If physicians do not charge for services, they cannot survive. If patients cannot afford those services, they cannot survive. No wonder many physicians have long agreed that fees are “one of the most difficult problems . . . between patient and physician.” For years comprehensive insurance subdued this problem, but currently widespread underinsurance and consumer-directed health care are reviving it. Even as the ranks of the uninsured continue to increase,the latest hope for controlling medical costs requires insured patients to pay for much more …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

Mid-Atlantic Ethics Committee Newsletter, Fall 2008

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz

Faculty Publications

Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values, your …

The Moral Significance Of Social Roles, James M. Donovan

James M. Donovan

Outside of specialized contexts, moral philosophy lacks an appreciation of the ethical commitments embedded within social roles such as that of "friend" and "spouse." The costs of this blindspot become especially high when considering certain problems that depend upon commonsense intuitions to discern what is or is not the "right" outcome. The problem of partiality--viewing one's relationships and projects as having intrinsic worth in themselves, rather than as a means to some other end, such as can be the case in some forms of utilitarianism--is one such example.

The present paper shows how unpacking the moral entailments of the roles …

Drafting Attorneys As Fiduciaries: Fashioning An Optimal Ethical Rule For Conflicts Of Interest, Paula A. Monopoli

Paula A Monopoli

The American Bar Association recently revised the ethical rules that govern lawyers. Its Ethics 2000 Commission proposed a number of changes to the Model Rules of Professional Conduct, including revisions to the rules that affect how the profession handles conflicts of interest in the area of attorneys who draft instruments that name themselves as fiduciaries. The intersection of these changes, with their subsequent clarification by an ABA opinion issued in May 2002, has broad implications for attorneys practicing in this area. Given the increasing elderly population, the trillions of dollars that they are transferring to their baby-boomer children, and the …

Limited Scope Representation: An Experiment In San Diego Housing Court, Lisa Young

Lisa Young

Limited Scope Representation: An Experiment in San Diego Housing Court Abstract By Lisa Young This paper analyses how limited scope representation effects the settlement agreements reached by litigants in San Diego Housing Court. Limited scope representation, also known as “unbundling,” is defined as a form of legal representation where the attorney only represents the client in one part of the client’s case. Limited Scope Representation is growing as a viable response to the significant lack of legal representation for middle- and low-income Americans. This paper is the first scholarship to test whether limited scope representation actually makes a substantive difference …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

Determinative Sentencing Laws: Understanding The Law And Ethical Concerns, Linsey L. Krauss

Linsey L Krauss

No abstract provided.

“Once Upon A Time, In A Land Far, Far Away . . .” Lawyers And Clients Telling Stories About Ethics (And Everything Else), Carolyn Grose

carolyn grose

ABSTRACT

Framed by an analysis of two particular ethical rules and their application to specific situations, this piece uses the metaphor of storytelling to explore the lawyer’s role as an effective and ethical client representative. Drawing from the experiences of two sets of clients and their lawyers, the piece proposes an approach to ethical regulation (as one component of the lawyer-client relationship) that requires the lawyer to engage in a deeply contextual analysis of the specific and particular ethical conflicts presented to him in any particular case; and work with his client to determine how to resolve those conflicts.

The …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Anthony C. Infanti

In this article, I consider how the tax lawyer’s generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit “lottery.” The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

Whistleblowers And Tax Enforcement: Using Inside Information To Close The "Tax Gap", Edward A. Morse

Edward A. Morse

This article examines the current legal structure allowing rewards for informants who assist the IRS in the enforcement of the tax laws. IRS data suggest that informants are a cost-effective means of enhancing tax enforcement. The Tax Relief and Health Care Act of 2006 introduced a separate whistleblower award program that enhances reward levels (up to 30 percent of the amount collected) and attempts to provide greater certainty in the payment of such rewards, including a process for enforcing reward claims through litigation in the Tax Court. Although whistleblower awards enhance tax enforcement, the current reward provisions raise significant issues …

Mid-Atlantic Ethics Committee Newsletter, Summer 2008

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Earth Jurisprudence: The Moral Value Of Nature, Judith E. Koons

Faculty Scholarship

As planetary environmental crises advance toward us like an enormous oil spill, the call of Earth Jurisprudence has arisen, suggesting that a shift is necessary in the way that we think about law, governance, and nature. A predicate to rethinking law, however, is to reconsider the moral status of nature. This article posits that, to preserve a healthy planet for future generations of human beings - and for Earth itself - it is necessary to recognize Earth as the center of the moral community. As an ethical endeavor, the article turns the question of the moral status of nature through …

Drawing The Ethical Line: Controversial Cases, Zealous Advocacy, And The Public Good: Foreword, Lonnie T. Brown

Scholarly Works

Are lawyers handling controversial matters justified in being myopically fixated upon achieving their client's or the state's objectives, whatever the costs? Or is there a point at which the interests of the system or perhaps even the public must take precedence, requiring that unbridled zeal and loyalty take a backseat? Such fascinating questions were skillfully examined during the 10th Annual Legal Ethics and Professionalism Symposium, "Drawing the Ethical Line: Controversial Cases, Zealous Advocacy, and the Public Good." The published remarks and the articles that follow provide a glimpse into the difficult ethical line-drawing that was engaged in by a distinguished …

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

Agenda: Shifting Baselines And New Meridians: Water, Resources, Landscapes, And The Transformation Of The American West, University Of Colorado Boulder. Natural Resources Law Center

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

The Center’s 29th annual conference will focus on the changes in the West resulting from rapid population growth, development, disrupted historical weather patterns and the effects of those changes on land, water, and energy resources. Speakers and panelists will address the adaptability of the legal and political institutions and how the transformation of the West may foreshadow fundamental changes to these institutions.

The agenda includes panel discussions that will address:

• Water for the 21^st Century —the big questions in Western water and rethinking Western water law.
• The Future of Energy —practical and sophisticated solutions to overcome the energy …

Ethical Exploitation Of The Unrepresented Consumer, The, Victoria J. Haneman

Missouri Law Review

This article begins in Section I with a brief overview of the debt industry. Section II describes the circumstances of an unrepresented defendant in the adversarial system of justice. The conventional codes of professional responsibility are weighed against a broader framework of normative ethics in Section III. Section IV illustrates how the particulars of the debt-buying setting are emblematic of broader issues. Two solutions are then discussed in Section V: One broadly targets the failure of attorneys' ethical codes to account for the collapse of the adversarial myth in cases involving unrepresented litigants; the other is a more tailored solution …

Sport And Politics, Christine Bell

Human Rights & Human Welfare

I found the reflection interesting, but unsurprising. Protestors use the Olympic spotlight (or should we say torch?) to shine on China’s flaws, and China tries to re-direct or extinguish its beams.

Curing Congress’S Ills: Criminal Law As The Wrong Paradigm For Congressional Ethics, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.

Mid-Atlantic Ethics Committee Newsletter, Spring 2008

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Are You In Good Hands: Is The Use Of In-House Counsel Right For South Carolina Insurance Defense, Eric Montalvo

South Carolina Law Review

No abstract provided.

The Ghost In Our Genes: Legal And Ethical Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

When The Criminal Client Intends To Commit Perjury, Grace M. Giesel

Grace M. Giesel

In the case of Brown v. Commonwealth, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court has provided trial courts and lawyers, especially criminal lawyers, with some much needed ethical guidance. While the case itself was a criminal appeal, not an attorney discipline matter, the Court’s opinion provides insight into the ethical sticky wicket of the proper conduct of the lawyer for a criminal defendant when the defendant intends to commit perjury. Such a situation pits the constitutional rights of criminal defendants against the ethical duties of defense counsel to act with candor to the court.

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

The Ethics Of Legal Process Outsourcing To India—Is The Practice Of Law A "Noble Profession," Or Is It Just Another Business?, Aaron R. Harmon

Aaron R. Harmon

Published as “The Ethics of Legal Process Outsourcing—Is the Practice of Law a ‘Noble Profession,’ or is it Just Another Business?” 13 U. of Fl. J. Tech. L. & Pol’y 41 (June 2008). In this Article, I analyze the emergence of LPO in India, as well as the ethical considerations raised for firms that offshore legal work. I focus on India, where the industry has evolved most rapidly, for two reasons. First, as a result of British colonization, many Indian workers speak English fluently, thereby facilitating an East-West synergy more easily than other countries. Second, India utilizes a common law …