Legal Profession Commons^™

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 …

How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and …

Making Civility Democratic, Amy R. Mashburn

Amy R. Mashburn

Historically, the concept of civility has been bound up with undemocratic notions of hierarchy and deference. Using insights from studies of civility by social psychologists, linguists, sociologists, historians, and political theorists, this article advances the theory that the legal profession’s self-consciously isolating professionalism ideology allows judges and disciplinary tribunals to apply deference-based notions of civility in their decisions to sanction lawyers. This theory would predict that the lawyers most likely to be sanctioned for incivility and rudeness are those from whom society expects the most deference. To test this theory, the author conducted an empirical study of every available case …

Admitting Foreign-Trained Lawyers In States Other Than New York: Why It Matters, Laurel S. Terry

Laurel S. Terry

Race, Identity, And Professional Responsibility: Why Legal Services Organizations Need African American Staff Attorneys, Shani M. King

Shani M. King

Given the fundamental importance of the attorney-client relationship in securing favorable outcomes for clients, legal services organizations that serve large populations of African Americans should employ African American staff attorneys because: (1) African American lawyers and clients share a group identity that makes it more likely that a black attorney will be able to gain a black client's trust; (2) black attorneys communicate more effectively with black clients; and (3) the perception of a judicial system that is unfair and racist is likely to encourage black clients to trust black lawyers more than white lawyers, who are more likely to …

Reconceptualizing The Judicial Activism Debate As Judicial Responsibility: A Tale Of Two Justice Kennedys, Eric J. Segall

Eric J. Segall

The academic and political debate over judicial activism has been based on the overriding but patently false assumption that the Supreme Court’s performance can be measured by examining the results that it reaches in constitutional cases. When scholars and politicians equate judicial activism with judicial invalidation of the works of the political branches or the reversal of precedent, however, these commentators don’t reveal anything different than would a pure descriptive account of the Court’s decision and rationale. Moreover, the judicial activism debate is unhelpful because the ambiguous sources of constitutional interpretation cannot privilege fundamental baselines or generate consensus over correct …

Judicial Humility And Affirmative Action, Eric J. Segall

Eric J. Segall

No abstract provided.

Professional Responsibility, Clark D. Cunningham

Clark D. Cunningham

No abstract provided.

But What Is Their Story?, Clark D. Cunningham

Clark D. Cunningham

No abstract provided.

Lawyers Heed Call To Volunteer Pro Bono Service, Lisa Radtke Bliss

Lisa Radtke Bliss

No abstract provided.

Representing Clients With Limited English Proficiency, Lisa Radtke Bliss

Lisa Radtke Bliss

No abstract provided.

Putting Best Practices Into Practice: Implementing Change One Step At A Time, Lisa Radtke Bliss

Lisa Radtke Bliss

No abstract provided.

Limits Of Disclosure, Steven M. Davidoff, Claire A. Hill

Steven Davidoff Solomon

One big focus of attention, criticism, and proposals for reform in the aftermath of the 2008 financial crisis has been securities disclosure. Many commentators have emphasized the complexity of the securities being sold, arguing that no one could understand the disclosure. Some observers have noted that disclosures were sometimes false or incomplete. What follows these issues, to some commentators, is that, whatever other lessons we may learn from the crisis, we need to improve disclosure. How should it be improved? Commentators often lament the frailties of human understanding, notably including those of everyday retail investors—people who do not understand or …

Institutional Actors And Protecting Clients In A Post-Monopoly World, Melissa Mortazavi

Melissa Mortazavi

No abstract provided.

Intermediaries Revisited: Is Efficient Certification Consistent With Profit Maximization?, Jonathan M. Barnett

Jonathan M Barnett

Private certification mechanisms are a key component of the regulatory infrastructure in the financial sector and other commercial settings. It is generally assumed that certification intermediaries have profit-based incentives to deliver accurate information to the certified market. But this view does not account for repeated failures in certification markets. Those failures can be explained by an inherent defect in the incentive structure of certification intermediaries: entry barriers both support and undermine the consistent supply of accurate information to the certified market. Certification markets tend to converge on a handful of providers protected by switching costs, product opacity and reputational noise. …

The Monopoly Myth And Other Tales About The Superiority Of Lawyers, Leslie C. Levin

Leslie C. Levin

The legal profession’s control of much of the market for legal services is justified by the claim that only licensed lawyers can effectively and ethically represent clients. This article challenges that claim. A review of a number of studies suggests that experienced nonlawyers can provide competent legal services in certain contexts and in some cases, can seemingly do so as effectively as lawyers. There is also little evidence that lawyers’ legal training, the bar admission requirements, or lawyers’ psychological characteristics make them more trustworthy than nonlawyer legal services providers. The article considers some recent initiatives, such as Washington’s approval of …

Book Review: Policing And The Poetics Of Everyday Life., Rodger E. Broome Phd

Rodger E. Broome

Policing and the poetics of everyday life. Chicago: University of Illinois Press, 2008. 256 pp. ISBN 978-0-252-03371-1 (cloth). $42.00. Policing and the Poetics of Everyday Life is a hermeneutical-aesthetic analysis within a human scientific approach of modern policing in the United States. It is an important study of police-citizen encounters informed by hermeneutic aesthetic thought and the author’s professional experience as a veteran with a Seattle area police department in Washington, USA.

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

The Social Media Frontier: Exploring A New Mandate For Competence In The Practice Of Law, Jan Jacobowitz, Danielle Singer

Jan L Jacobowitz

Attorney Mark O’Mara’s use of social media as part of the defense strategy in the representation of George Zimmerman, who was prosecuted for the death of Trayvon Martin, highlighted the use of social media in the practice of law, and because of the tremendous media coverage of the trial, facilitated a robust conversation on whether the legal profession’s use of social media is the “new normal.” In fact, lawyers’ increasing use of social media is evidenced by a growing body of case law, ethics opinions, and journal articles discussing the propriety of using social media in areas such as investigation, …

The Good Fight: The Egocentric Bias, The Aversion To Cognitive Dissonance, And The American Criminal Law, Daniel S. Medwed

Daniel S. Medwed

The phrase “cognitive bias” often has negative connotations. It is something to be overcome, thwarted, or, at best, circumvented. In this essay, I suggest that two interrelated cognitive biases—the egocentric bias and the aversion to cognitive dissonance—might instead serve as potential assets for a criminal law practitioner in persuading her constituencies.

Embodying Law In The Garden: An Autoethnographic Account Of An Office Of Law, Matilda Arvidsson

Dr Matilda Arvidsson

Based on an autoethnographical study of the office of the tingsnotarie this article questions the relation between the ethical self and the act of taking up a judicial office, employing the question of how I can live with (my) law. While the office and the ethical self are kept apart, often by recourse to persona, I make a case for the attendance to the self in examinations of ethical responsibility when pursuing an office of law. I propose that the garden, and in particular the practices and notions of (en)closure, (loss of) direction, cultivation, (dis)order, authorship and care-for-the-other which are …

Lawyers Beware: You Are What You Post! The Case For Integrating Cultural Competence, Legal Ethics And Social Media, Jan Jacobowitz

Jan L Jacobowitz

First learn the meaning of what you say, and then speak. --Epictetus

Words used carelessly, as if they… do… not matter in any serious way, often allow… otherwise well-guarded truths to seep through. --Douglas Adams

Happy Mother’s Day to all the crack hoes out there. It's never too late to tie your tubes, clean up your life and make difference to someone out there that deserves a better mother. --Assistant State Attorney in Orange County, Florida

No thought left unspoken…social media networking -- ubiquitous in our society -- provides the opportunity for individuals to share their moment-to-moment thoughts and actions. …

The Practice And Theory Of Lawyer Disqualification, Keith Swisher

Keith Swisher

Lawyer disqualification is commonly feared — as a “strategic,” “tactical,” and “harassing” “potent weapon” depriving clients of their trusted counsel of choice. Although disqualification comes with costs, fundamental misunderstandings fuel this common fear. This Article finds that disqualification is a uniquely effective remedy for lawyer misconduct and makes the following contributions to the law and practice of lawyer disqualification: (1) an exhaustive study surveying disqualification cases and refuting the common misconception that disqualification motions are uncontrollably on the rise and uncontrollably bad; (2) an accessible analysis of lawyer disqualification doctrine that permits lawyers and judges to begin assessing common disqualification …

The First Thing We Do, Jorge R. Roig

Jorge R Roig

Globalization And The Aba Commission On Ethics 20/20: Reflections On Missed Opportunities And The Road Not Taken, Laurel S. Terry

Laurel S. Terry

The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” The thesis of this article is that the Commission was much more successful with the “technology” aspect of its work than it was with the globalization aspect of its work. This article offers an explanation for these differing levels of success and identifies an alternative path the Commission might have taken that might have led to greater success …

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan D. Carle

Susan D. Carle

What It Means To Be A Lawyer In These Uncertain Times: Some Thoughts On Ethical Participation In The Legal Education Industry, Susan D. Carle

Susan D. Carle