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Articles 1 - 30 of 107
Full-Text Articles in Legal Ethics and Professional Responsibility
Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh
Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh
Nancy Welsh
In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the CFPB’s …
Musings On Mediation, Kleenex, And (Smudged) White Hats, Nancy A. Welsh
Musings On Mediation, Kleenex, And (Smudged) White Hats, Nancy A. Welsh
Nancy Welsh
This Essay speculates on the global future of mediation. It anticipates that mediation’s popularity will continue to grow both in the U.S. and abroad particularly as courts continue to encourage and institutionalize the process. Meanwhile, the Essay acknowledges the existence and continuing development of a relatively small cadre of elite lawyers and retired judges who serve as private mediators in large, complex matters.
The Essay also raises concerns, though, regarding the current lack of clarity in the goals and procedural characteristics that define mediation. The Essay asserts that such lack of clarity invites abuse of the mediation privilege and exclusionary …
Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh
Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh
Nancy Welsh
Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …
Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger
Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger
Lauren Edelman
Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend …
The Negotiator-As-Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow
The Negotiator-As-Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow
Trevor C. W. Farrow
This article is about lawyers as negotiators, and in particular, it is about identifying and understanding the influential and potentially competing interests that are - or at least should be - in the minds of lawyers (and potentially other third party representatives) during the overall negotiation process. While there continues to be an increasing amount of literature on the mechanics and strategies of negotiation, the underlying interests that are typically at stake in representative negotiations from the perspective of representatives - particularly negotiations involving lawyers - have not been adequately studied. And until all interests are identified and placed squarely …
When Bad Guys Are Wearing White Hats, Catherine A. Rogers
When Bad Guys Are Wearing White Hats, Catherine A. Rogers
Catherine Rogers
Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …
Lawyers Without Borders, Catherine A. Rogers
Lawyers Without Borders, Catherine A. Rogers
Catherine Rogers
Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …
Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers
Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers
Catherine Rogers
Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …
The Vocation Of International Arbitrators, Catherine A. Rogers
The Vocation Of International Arbitrators, Catherine A. Rogers
Catherine Rogers
This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …
Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers
Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers
Catherine Rogers
In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only …
Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers
Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers
Catherine Rogers
The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.
Deadly Waiting Game: An Environmental Justice Framework For Examining Natural And Man-Made Disasters Beyond Hurricane Katrina [Abstract], Robert D. Bullard
Deadly Waiting Game: An Environmental Justice Framework For Examining Natural And Man-Made Disasters Beyond Hurricane Katrina [Abstract], Robert D. Bullard
Robert D Bullard
Presenter: Robert D. Bullard, Ph.D., Professor of Sociology, Clark Atlanta University 1 page.
Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly
Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly
Peter R. Reilly
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 …
L'Avvocato-Arbitro Nell'art. 61 Del Nuovo Codice Deontologico Forense, Valerio Sangiovanni
L'Avvocato-Arbitro Nell'art. 61 Del Nuovo Codice Deontologico Forense, Valerio Sangiovanni
Valerio Sangiovanni
No abstract provided.
Regulating Mediators, Art Hinshaw
Regulating Mediators, Art Hinshaw
Art Hinshaw
Currently consumers engage mediators on a caveat emptor basis. The regulatory scheme for mediators is, at best, a disjointed patchwork of organizations that make mediation referrals which allows unscrupulous mediators to exploit consumers and hide in the system’s holes. One egregious example of abuse comes from Gary J. Karpin, a disbarred lawyer turned divorce mediator, who is believed to have used the mediation process to con hundreds of people into giving him an estimated $1 million before taking up residence in prison. His con was so successful in part because there was no natural place for his victims to turn …
The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer
The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer
David Barnhizer
In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and …
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Susan Daicoff
Professional identity formation as a learning objective in law school may appear to be nontraditional and perhaps even innovative. While perhaps not a new concept, it is not typically an explicit goal of legal education. Empirical data finds that law school has demonstrable effects upon law students’ professional development; it also finds that certain nontraditional skills and competencies (or “soft skills”) make lawyers most effective. This article argues for explicit planning for and inclusion of professional identity development, including training in these nontraditional skills, in legal education. Professional identity encompasses one’s values, preferences, passions, intrinsic satisfactions, emotional intelligence, as well …
Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin
Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin
Leonard L Riskin
This article focuses on one particularly common problem: Sometimes people who understand the Core Concerns System, know how to use it, and intend to employ it in a particular negotiation, either fail to do so or fail to do so skillfully; when they review the negotiation, they regret not having used the Core Concerns System, and believe that using it would have produced a better process and outcome. When this occurs, it often results from deficits or faults in the negotiator's awareness. It follows that a negotiator can enhance his ability to employ the Core Concerns System through improving his …
Ethics Consultations And Conflict Engagement In Health Care, Charity Scott
Ethics Consultations And Conflict Engagement In Health Care, Charity Scott
Charity Scott
This article explores the intersection of two professional fields - bioethics and clinical ethics consultation in health care on one hand, and alternative dispute resolution ("ADR") and conflict management on the other - which until recent years remained relatively unknown to each other. It marries the literatures and lessons of these two fields in order to promote the quality of ethics consultations in hospitals and other health care organizations. * Increasingly, health care ethics committees and consultants acknowledge the need to employ the frameworks, approaches, and tools of good conflict management to do their work effectively. Similarly, conflict specialists and …
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …
Conflicts As Inner Trials: Transitions For Clients, Ideas For Lawyers, Jonathan R. Cohen
Conflicts As Inner Trials: Transitions For Clients, Ideas For Lawyers, Jonathan R. Cohen
Jonathan R. Cohen
As times of transition, conflicts often produce significant inner trials for parties. This paper categorizes some of the more common inner trials parties in conflict face (e.g., coping with loss, strong emotions, uncertainty, etc.) and suggests that, as liminal times in people’s lives, some conflicts may also hold within them important opportunities for learning, growth and self-definition. This paper also offers some ideas for how lawyers might best assist clients during such transitions.
The New Frontier Of Advanced Reproductive Technology: Reevaluating Modern Legal Parenthood, Yehezkel H. Margalit Dr., John D. Loike Dr., Orrie Levy Adv.
The New Frontier Of Advanced Reproductive Technology: Reevaluating Modern Legal Parenthood, Yehezkel H. Margalit Dr., John D. Loike Dr., Orrie Levy Adv.
Hezi Margalit
Assisted reproductive technologies (ARTs) have challenged our deepest conceptions of what it means to be a parent by fragmenting traditional aspects of parenthood. The law has been slow to respond to this challenge, and numerous academic articles have proposed models for adapting parentage laws to ARTs. In the coming years, however, scientific advancements in reproductive technologies, such as somatic cell nuclear transfer and stem cell technologies, will challenge both parentage laws and proposed legal models for traditional ARTs in new and fascinating ways. For instance, these advanced technologies could allow two women to create a child without any male genetic …
Cross-Border Aspects Of Litigating In Europe Civil Claims Arising Out Of The Cyprus Problem: Thoughts On The Orams Case (In Greek), Nikitas E. Hatzimihail
Cross-Border Aspects Of Litigating In Europe Civil Claims Arising Out Of The Cyprus Problem: Thoughts On The Orams Case (In Greek), Nikitas E. Hatzimihail
Nikitas E Hatzimihail
The European Court of Justice ruling in the Orams v. Apostolides case has served as a landmark in the legal history of the Cyprus problem. It is also of some importance to the evolution of European litigation and the free movement of civil judgments across the EU. This article gives a full story of the case, from its beginnings in the courts of Cyprus to its aftermath in the English Court of Appeals. Its principal argument is that the case should be seen through a triple lens: property rights of the displaced Greek Cypriots, private litigation of public claims and …
Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen
Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen
Jonathan R. Cohen
This Essay works in two steps. I want to daydream with you about the future, or what I hope will someday be the future, of our dispute resolution movement. I want to then use these imaginings to reflect upon where we are today. I want to suggest something that may at first seem odd: Our ultimate goal should be to put ourselves, or virtually put ourselves, out of business. Eventually, I hope the time will come when we live in a society where the expert services of dispute resolution professionals, including not only lawyers and judges but also mediators and …
The Culture Of Legal Denial, Jonathan R. Cohen
The Culture Of Legal Denial, Jonathan R. Cohen
Jonathan R. Cohen
The goals of this essay are twofold. The first is to examine critically the practice of lawyers assisting clients in denying harms they commit and suggest some ways of changing that practice. Lawyers commonly presume that their clients' interests are best served by denial. Yet such a presumption is not warranted. Given the moral, psychological, relational, and sometimes even economic risks of denial to the injurer, lawyers should consider discussing responsibility taking more often with clients. The second is to explore several structural or systemic factors that may reinforce the practice of denial seen day in and day out within …
When People Are The Means: Negotiating With Respect, Jonathan R. Cohen
When People Are The Means: Negotiating With Respect, Jonathan R. Cohen
Jonathan R. Cohen
Most scholarship on negotiation ethics has focused on the topics of deception and disclosure. In this Article, I argue for considering a related, but distinct, ethical domain within negotiation ethics. That domain is the ethics of orientation. In contrast to most forms of human interaction, a clear purpose of negotiation is to get the other party to take an action on one's behalf, or at least to explore that possibility. This gives rise to a core ethical tension in negotiation that I call the object-subject tension: how does one reconcile the fact that the other party is a potential means …
Legislating Apology: The Pros And Cons, Jonathan R. Cohen
Legislating Apology: The Pros And Cons, Jonathan R. Cohen
Jonathan R. Cohen
Should apologies be admissible into evidence as proof of fault in civil cases? While this question is a simple one, its potential ramifications are great, and legislative and scholarly interest in the admissibility of apologies has exploded. Shortly after the idea of excluding apologies from admissibility into evidence was raised in academic circles three years ago, it rapidly spread to the policy arena. For example, California and Florida enacted laws in 2000 and 2001 respectively excluding from admissibility apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorrythat I injured you") after accidents. Eight …
Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen
Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen
Jonathan R. Cohen
In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.
The Immorality Of Denial, Jonathan R. Cohen
The Immorality Of Denial, Jonathan R. Cohen
Jonathan R. Cohen
This article is the first of a two-part series critically examining the role of lawyers in assisting clients in denying responsibility for harms they have caused. If a person injures another, the moral response is for the injurer actively to take responsibility for what he has done. In contrast, the common practice within our legal culture is for injurers to deny responsibility for harms they commit. The immoral, in other words, has become the legally normal. In this Article, Professor Cohen analyzes the moral foundations of responsibility-taking. He also explores the moral, psychological, and spiritual risks to injurers who knowingly …
La Transparencia En La Protección De Datos Personales, Bruno L. Costantini García
La Transparencia En La Protección De Datos Personales, Bruno L. Costantini García
Bruno L. Costantini García
La Transparencia en la Protección de Datos Personales, ponencia elaborada dentro de los trabajos del VII Congreso Nacional de Organismos Públicos Autónomos (OPAM)