Legal Profession Commons^™

Conflicts Of Interest And Institutional Litigants, Curtis E.A. Karnow

ExpressO

This paper uses techniques borrowed from the field of game theory to describe rational bargaining among institutional litigants, and explains how the results, while often not leading to the rational outcome in a given case, do rationally serve a more general strategy. The paper then reviews the law on conflicts of interests and concludes that such conflicts—as between attorney and client, and among clients—will often result when institutional litigants bargain. The paper continues with a review on the law of waiver and provides a basis to accommodate the conflicts of interests. That accommodation however will often not be practical, and …

A Complete Property Right Amendment, John H. Ryskamp

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The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

A Satire Of Law Firm Employment Practices (Book Review Of Anonymous Lawyer, By Jeremy Blachman), Miriam A. Cherry

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My essay is a review of Jeremy Blachman’s new book, Anonymous Lawyer. The book is a black-humorous stab at the hearts and souls of large elite law firms everywhere (if firms had such things as hearts and souls). In this review essay, I discuss why the blog struck a chord with so many readers, and why the novel Anonymous Lawyer contains a serious message about employment at law firms. First, I place Anonymous Lawyer within the tradition of satire surrounding the legal profession. Specifically, I compare Blachman’s novel to John Jay Osborne Jr.’s earlier novel The Associates, which also takes …

The Case For American History In The Law-School Curriculum, Harold P. Southerland

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This article argues for the teaching of American History throughout the first year of law school. I do not believe that students can fully understand the cases they are reading in other courses without a knowledge of environing context. Understanding American History -- which is many respects doesn't paint a flattering picture -- may also help students in making fundamental choices about what role they wish to play in their careers as lawyers. I believe it is time to recognize that too much of the profession is run as a business and not as a noble calling dedicated to helping …

Form And Substance: Standards For Promotion And Retention Of Legal Writing Faculty On Clinical Tenure Track, Melissa H. Weresh

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This article compares standards for promotion and retention of legal writing faculty on a clinical tenure track. The article provides a brief history of legal writing professionals and examines specific employment criteria such as teaching, service, and scholarship. The article makes recommendations regarding those criteria based upon an assessment of institutional realities and the historical development of the profession.

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

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The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.

Flattening The World Of Legal Services? The Ethical And Liability Minefields Of Offshoring Legal And Law-Related Services, Carole Silver, Mary C. Daly

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This article examines offshore outsourcing of legal and law-related services as the newest twist in the international market for legal services. We consider the impact of offshore outsourcing on the profession generally and analyze the ethical issues raised by offshore outsourcing, both as it exists today and as the practice may develop in the future. The article begins by situating offshore outsourcing in the framework of relationships created in the context of delivery of legal services. This framework is used, in turn, to construct a structure of analysis for the ethical implications of offshore outsourcing. Lawyers who outsource to offshore …

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

Imagining The Law-Trained Reader: The Faulty Description Of The Audience In Legal Writing Textbooks., Jessica E. Price

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In law schools today, first-year legal writing courses play a crucial role in helping students learn to communicate about the law. Many legal writing teachers approach legal writing education in a practical way, attempting to pass on their own experiences in law practice settings to students. Unfortunately, as other writers have observed, such reliance on personal knowledge about “what lawyers are like” may lead legal writing teachers to oversimplify a complicated matter – the needs and preferences of the audience for legal writing – and may even amount to indoctrination in stereotypes about law practice. This article offers a closer …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

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This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Learning To Writing In Code: The Value Of Using Legal Writing Exercises To Teach Tax Law, Scott A. Schumacher

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Traditionally, law school tax courses have been taught using a mix of problems, class discussion, the Socratic method, and one end-of-term exam. The goal of these courses is to introduce students to key concepts of tax law and to teach them the essential skill of reading and interpreting the Internal Revenue Code and Treasury Regulations. This traditional method of instruction is an efficient and cost-effective way of transmitting a great deal of complex information to a large number of students. It is also a good vehicle to teach the essential skill of reading and interpreting the Code. However, the time …

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

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This article attempts, empirically, to explain the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as “transaction cost engineers” and “reputational intermediaries.” This new model not only helps inform contract theory but also reveals a profoundly different vision than existing models for the future of legal education and the profession.

Multistable Figures: Sexual Orientation Visibility And Its Effects On The Experiences Of Sexual Minorities In The Courts, Todd Brower

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A multistable figure is a cognitive illusion in which a single drawing contains multiple, competing images. On first viewing a person will see one image, but not the other – it usually requires additional information to trigger the viewer’s awareness of the second image. However, once you know about the disparate figures in the illustration, you cannot erase that knowledge from your mind and see a sole image as you did originally. This inability to ignore information and its effect on subsequent experience has parallels in lesbians’ and gay men’s treatment in the courts.

Courts today are deeply involved in …

Peace Is Not The Absence Of Conflict: A Response To Professor Rogers' Article: "Fit And Function In Legal Ethics", Kirsten D. Weisenberger

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This paper takes the theoretical model Professor Catherine Rogers developed in her article “Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration,” 23 MICH. J. INT’L L. 341 (2002) as the starting point for an original argument that conflicts of laws analysis should be used to determine which legal ethics rules should apply to lawyers practicing international arbitration. The argument is supported by the new ABA Model Rules of Professional Conduct rule on choice of law explicitly applies conflicts of laws analysis to lawyers practicing in the multijurisdictional settings. This paper analyses the new ABA …

In Facetiis Verititas: How Improv Comedy Can Help Lawyers Get Some Chops, Steven Lubet

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Lawyers can learn a lot from the theory of improvisational comedy, and it isn’t just a matter of thinking on your feet. As we will explain, the key concept in both disciplines is the creation of a new, temporary reality. In improvisation, the cast must draw the audience into sharing the constructed reality of the stage, such that they can actually “see” the objects and characters portrayed, without the use of props or costumes. In trial, the lawyer must draw the jury into sharing the re-constructed reality of past events, such that they “see” what happened, even though they were …

Vengeance, Forgivness, Resentment, Jurisprudence, Dispute Resolution, Theodore Y. Blumoff

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Vengeance is generally accompanied by the moral emotion of resentment and indignation, which are also natural psychological reactions. We can and do give these emotions cognitive content, inasmuch as they have developed and matured over time with culture, but they are primitive. They arise when an individual suffers a non-trivial injury that was inflicted without excuse or justification. Among other injuries suffered, the harm done discounts the value we hold of ourselves as human beings, so that when this discounting (the crime or a substantial tort) occurs and we react defensively; our worth as an individual feels threatened. We hope …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

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This brief comment suggests where the anti-eminent domain movement might be heading next.

The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann

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This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.

Review Essay: Using All Available Information, Max Huffman

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This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

The Power Of Law Firm Partnership: Why Dominant Rainmakers Will Impede The Immediate, Widespread Implementation Of An Autocratic Management Structure, Matthew Scott Winings

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Consultants and commentators have suggested that law firms would benefit from the implementation of effective business management practices. Specifically, a number of observers maintain that the partnership model by which virtually all law firms operate is outdated and inefficient. To alleviate this inefficiency, commentators claim that law firms could experience tremendous gains through the adoption of a corporate management model. Although the proposals advanced by observers differ slightly, the basic premise of the suggested solutions requires law firms to replace (or at least modify) their partnerships with a rational management structure in favor of a centralized leader who can best …

E-Lawyering, The Aba's Current Choice Of Ethics Law Rule & The Dormant Commerce Clause: Why The Dormant Commerce Clause Invalidates Model Rule 8.5(B)(2) When Applied To Internet Representations Of Clients , Michael W. Loudenslager

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The Internet is becoming the primary manner in which some attorneys serve clients. States have already taken differing views on whether it is acceptable for an attorney to engage in electronic representations of clients. Thus, determining what jurisdiction’s law applies to such attorney conduct can be very important in deciding whether this activity constitutes the unauthorized practice of law, and, if not, the exact duties of an attorney in such representations.

This article argues that the current version of Model Rule of Professional Responsibility 8.5(b), which governs choice of ethics law, can be interpreted to apply the legal ethics rules …

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

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There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …

Empirilegal Analysis: Commencement Of A Dialogue, Or A Battle?, Anne M. Corbin

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As disciplines, law and science involve different ways of doing essentially the same thing: render the best possible decision based on existing information. In their efforts to accomplish this shared goal, law and science use different methods and speak different languages. In recent years, however, law and science have been increasingly working in the same arenas. Naturally, this can lead to tension because of the ways in which the two disciplines differ. Sometimes this tension demonstrates itself as outright conflict as it did when Epstein and King came out with their controversial “Rules of Inference” in which they criticized legal …

Dropping The Hot Potato: Rescusitating The Permissive Withdrawal Rules In The Model Rules Of Professional Conduct, Henry M. Kelln

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Critical analysis of the Hot Potato Rule in attorney ethics through pragmatic, textual, and philosophical approaches.

When The Inquisitorial And Adversary Systems Collide: Teaching Trial Advocacy To Latin American Lawyers, Leonard L. Cavise

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The first part of the article reviews the principal differences in the two systems as it affects trial procedure. The article then reviews those aspects of accusatorial trial proceedings that caused the greatest degree of discomfort to the foreign lawyers. Finally, the article attempts to posit a few recommendations that should help not only to ease the transition process but also to anticipate the next level of procedural and substantive obstacles.

Legal Doubletalk And The Concern With Positional Conflicts: A "Foolish Consistency?", Helen A. Anderson

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This article explores the question whether lawyers should be able to argue both sides of a legal issue is unrelated cases. Today the ABA and many state bar associations caution against so-called “positional conflicts,” analyzing them as potential conflicts of interest under a multi-factor test. This relatively recent concern misses the real potential for harm: it is precisely when a lawyer decides not to make a contradictory argument for one client in order not to offend or harm another client that an ethical problem is likely to be present. A positional conflict is therefore evidence that any pressure to modify …

The Conviction Of Lynne Stewart And The Uncertain Future Of The Right To Defend, Tamar R. Birckhead

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At the heart of the attorney-client relationship lies the ability to communicate freely and without fear that someone is listening. Since 9/11, the government has passed regulations, such as the Special Administrative Measures (“SAMs”), that by virtue of their broad scope and lack of procedural safeguards have endangered this privilege, particularly for incarcerated criminal defendants. The recent conviction of attorney Lynne Stewart for providing material support to a foreign terrorist organization has brought this issue to the forefront, as the prosecution relied upon government-monitored conversations between Stewart and her client, convicted terrorist Sheik Abdel Rahman, to prove its case against …

Even Heroes Need To Talk: Psycho-Legal Soft Spots In The Field Of Asylum Lawyering, Tehila Sagy

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This research identifies emotional pressure points pertaining to the asylum seeking client’s narration of her traumatic past persecution in the process of preparing the asylum claim. A typology of psycholegal soft-spots was offered, which includes the potential impact of the work done by the asylum seeking client and her lawyer on both parties. Interviews with Bay Area lawyers who represented asylum seekers were conducted in order to assess the level of asylum lawyer’s awareness to special needs dictated by the psycho-legal soft spots during asylum representation. Lawyers were asked about how they handle those issues and about training and support …

Langdell Upside-Down: The Anticlassical Jurisprudence Of Anticodification, Lewis A. Grossman

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At the end of the nineteenth century, the American legal community engaged in an impassioned debate about whether the substantive common law should be codified. The American codifiers, like their civil law counterparts in Europe, sought to make the law largely “judge proof” by reducing the function of courts to the nondiscretionary application of clearly stated statutory principles and rules. By contrast, codification opponents, led by James Coolidge Carter, fought to preserve the centrality of courts in the American legal system. In light of the influential scholarship portraying Gilded Age law as dominated by Langdellian “classical legal thought,” one might …

Attorneys As Gatekeepers: Sec Actions Against Lawyers In The Age Of Sarbanes-Oxley, Lewis D. Lowenfels, Alan R. Bromberg, Michael J. Sullivan

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Following the enactment of the Sarbanes-Oxley Act on July 30, 2002, the Securities and Exchange Commission has substantially increased the number of actions it has initiated against lawyers. And a substantial number of these recent SEC actions against counsel to public companies (both internal and external) have highlighted the SEC’s resolve to hold lawyers accountable for not performing adequately their SEC-conceived role as “gatekeepers” to prevent fraud and other violations of the federal securities laws. This “gatekeeper” concept has been and is being implemented through SEC actions addressing a wide variety of alleged transgressions in a wide diversity of factual …