Legal Profession Commons^™

Colorado Lawyers Beware: Anstine V. Alexander And The Attorney's New Duty To Non-Clients, Michael David Delcour

University of Colorado Law Review

In Anstine v. Alexander, the Colorado Court of Appeals addressed the issue of whether an attorney can be found liable for aiding and abetting his client's breach of fiduciary duty to a non-client. Although the attorneys in question were absolved of legal malpractice liability to the corporation they represented, the defendant-attorneys were found liable for aiding and abetting the president's breach of fiduciary duty to the corporation's creditors. Interestingly, the same piece of advice that was given by the attorneys to the president of the corporation was at the heart of both the malpractice claim and the aiding and abetting …

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

Articles by Maurer Faculty

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 …

Truth Tales And Trial Films, Jessica Silbey

Faculty Scholarship

Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined. There are too many television shows, films, popular novels and web-based entertainment to withdraw "the law" (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this …

Sensational Reports: The Ethical Duty Of Cause Lawyers To Be Competent In Public Advocacy, Deborah J. Cantrell

Publications

This article argues that cause lawyers - those lawyers whose primary focus is on social change rather than on for-profit client-based work - have an ethical responsibility to be competent in public advocacy. That responsibility stems from a cause lawyer's commitment to the principles embodied in the particular social movement in which the lawyer is acting. It is reinforced by the requirement of competency under the Model Rules of Professional Conduct. To illustrate the contours of a competent public advocacy strategy, the article highlights two cause lawyering organizations, Legal Momentum and the Institute for Justice, and considers how each organization …

The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick

All Faculty Scholarship

Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

The Curious Complications With Back-End Opt-Out Rights, Rhonda Wasserman

Articles

Class action litigation seeks to mediate pressing conflicts between individual autonomy and collective justice; federal supervision and local control; self-interested class counsel and the represented class. These conflicts are exacerbated when a federal court that approves a class action settlement later seeks to enjoin state court litigants from violating its terms. Yet the demand for such injunctions has increased in light of the advent of back-end opt-out rights. In recent years, class members have been afforded back-end, or delayed, opportunities to opt out of a class action once the terms of the settlement are disclosed. These back-end opt-out rights may …

Legal Scholarship, Humility, And The Scientific Method, David J. Herring

Articles

This essay responds to the question of What next for law and behavioral biology? by describing an approach to legal scholarship that relies on the scientific method. There are two steps involved in this approach to legal scholarship. First, the legal scholar must become familiar with an area of scientific research that is relevant to the development of law and policy. (This essay uses behavioral biology research as an example.) Second, the legal scholar must seek and form relationships across disciplines, becoming an active member of a scientific research team that conducts studies relevant to particular issues of law and …

The Market For Bad Legal Scholarship: William H. Simon's Experiment In Professional Regulation, The, Bruce A. Green

Faculty Scholarship

William H. Simon is a highly regarded law professor and legal theorist whose principal subjects include the legal profession. Much of his scholarship challenges conventional professional norms and practices. His most recent article targets lawyers, especially law professors, who advise clients and serve as expert witnesses. His basic premise is that some clients do not seek lawyers' accurate, honest views but want their lawyers to ratify their proposed or past conduct regardless of its lawfulness, and that law professors and other lawyers sometimes satisfy this market by giving "bad legal advice." To discourage lawyers from doing so, and to minimize …

Sleight Of Hand, Benjamin C. Zipursky

Faculty Scholarship

Thanks to Richard Posner's classic 1972 article, A Theory of Negligence Law, the Hand formula of United States. v. Carroll Towing Co. is perhaps the most central idea of many first-year torts classes today. Students learn that the meaning of negligence should be understood in terms of Judge Learned Hand's formula comparing the costs of taking precautions with the product of the likelihood of injury without those precautions and the magnitude of such injury. There is more than a little irony, however, in the superstar status of the Hand formula in negligence law. Carroll Towing is not a negligence case …

Calling For Stories, Nancy Levit, Allen Rostron

Faculty Works

Storytelling is a fundamental part of legal practice, teaching, and thought. Telling stories as a method of practicing law reaches back to the days of the classical Greek orators. Before legal education became an academic matter, the apprenticeship system for training lawyers consisted of mentoring and telling war stories. As the law and literature movement evolved, it sorted itself into three strands: law in literature, law as literature, and storytelling. The storytelling branch blossomed.

Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the …

The Globalization Of The Legal Profession, William D. Henderson

Indiana Journal of Global Legal Studies

Globalization of The Legal Profession, Symposium. Indiana University School of Law-Bloomington, April 6, 2006

Local Matters: Internationalizing Strategies For U.S. Law Firms, Carole Silver

Indiana Journal of Global Legal Studies

The local nature of legal systems reduces the harmonizing impact that globalization has generated in other sectors of the economy. Despite the continuing importance of local differences and institutions, the world in which law and lawyers operate is increasingly connected, and national borders are receding as barriers to commerce. Lawyers and their firms must respond to the forces of globalization both as organizations and in connection with the services they provide. This article addresses the ways in which they are doing so by examining what it means for a law firm to be both a global and a U.S. firm. …

Conflicts Of Interest, Ellen Y. Suni

Faculty Works

No abstract provided.

Law As Symbol: Appearances In The Regulation Of Investment Advisers And Attorneys , Larry D. Barnett

Cleveland State Law Review

From a macrosociological perspective, law is an institution of society, is shaped by conditions in society, and facilitates social life by interalia producing symbols. Law accordingly adopts concepts and principles that focus on the appearance to society of certain phenomena and that are symbols when the phenomena are socially significant. To illustrate symbols in law, the article examines (i) the "hold oneself out" standard in defining an investment adviser under the federal Investment Advisers Act and (ii) the standard for ethical conduct that requires attorneys to avoid appearances of impropriety. If symbolic concepts and principles are tied to the properties …

The Effect Of Risk On Legal Valuation, Robert J. Rhee

UF Law Faculty Publications

From a financial economic perspective, the governing condition of a meritorious civil action is the uncertainty of outcome. Expectation and outcome deviate, and the spread is the measure of uncertainty (or variance). During litigation each party has an option to settle or select trial. The decision standard can be seen as an option strike price and a finding of liability as an "in-the-money" call option. This apparent optionality suggests the application of an option pricing model to legal valuation, and a small but growing body of scholarship endorses this concept. However, option theory is not the only concept. Under an …

Too Long Neglected: Expanding Curricular Support For Public Interest Lawyering, Louis S. Rulli

All Faculty Scholarship

No abstract provided.

Ron Coffey: The Thinker's Thinker, Peter M. Gerhart

Faculty Publications

Tribute to Ron Coffey

Res Ipsa Loquitor -- Law A Noble Profession, Marissa Moran

Publications and Research

No abstract provided.

The Paradox Of Hierarchy - Or Why We Always Choose The Tools Of The Master's House, Zanita E. Fenton

Articles

No abstract provided.

The Gats And Legal Services In Limerick, Laurel S. Terry

Faculty Scholarly Works

One of the most significant regulatory developments for legal services is their inclusion in the 1994 General Agreement on Trade in Services or GATS. The GATS was the first world trade agreement to cover services rather than goods and it applies to legal services. The GATS in Limerick is a light-hearted but nonetheless serious effort to address the most important legal services-related GATS developments in the last twelve years. These verses cover the basic principles of the GATS, the ongoing market access negotiations and the efforts to develop disciplines on domestic regulation.

Income And Career Satisfaction In The Legal Profession: Survey Data From Indiana Law School Graduates, Jeffrey E. Stake, Kenneth G. Dau-Schmidt, Kaushik Mukhopadhaya

Articles by Maurer Faculty

This article presents data on graduates of a law school located at a large, midwestern public university. It presents responses to survey questions relating to various personal and job characteristics, including income from the practice of law and career satisfaction. It compares the responses across various demographic groups, including type of practice, gender, race, and ethnicity. We find that lawyers in large private law firms make more money than lawyers in small private practices, who, in turn, make more than those in government or public interest positions. Career satisfaction is greatest for lawyers in corporate counsel, public interest, and government …

Reflections On Leadership, Robert H. Jerry Ii

Faculty Publications

When I first sought to become more familiar with the available academic literature on leadership a few years ago, I encountered servant-leadership theory and the writings of Robert Greenleaf. In those materials I found a much more developed articulation of this philosophy, and it is the essence of that philosophy of leadership that I embrace. Stated succinctly, leadership has its roots in service, and effective leadership is based on service to others. Effective leadership comes from the desire to put the well-being of others first-whether they are students, faculty, employees, customers, or community-and to give priority to the interests of …

What’S International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces an immediate and continuous threat of terrorist attack using weapons of mass destruction, including nuclear weapons. The intelligence function and national security law, including international law--or more accurately transnational law--are central to addressing this threat. Indeed, international law is more relevant today in addressing this threat than it was before September 11. Part II of this article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Part …

Guilty Pleas And Barristers' Incentives: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of …

The Word And The Law, James Boyd White

Articles

In this Article I shall first give a brief account of Milner Ball's book, The Word and the Law, saying something about the interesting and important way in which it connects theology, literature, and law. I shall then give a little more content to what I say about this achievement by engaging in a kind of reading of two texts, one theological and one literary, connecting both to the law. I mean this reading simultaneously to be my own and to reflect something of what I have learned from Milner. Another way to put this is to say that …

Interdisciplinary Clinical Teaching Of Child Welfare Practice To Law And Social Work Students When World Views Collide, Kathleen Coulborn Faller, Frank E. Vandervort

Articles

Because child welfare cases in the world of professional practice require interdisciplinary collaboration, it would seem to follow that graduate students, who will become child welfare professionals, should be trained together, both in the classroom and in clinical settings. However, the implementation of interdisciplinary training is far from straightforward. In this Article, we focus on law and social work students. First, we describe the roles of lawyers and social worker in child welfare work. Next we argue that interdisciplinary classroom teaching is easier than clinical teaching, proposing a series of topics to be covered in an interdisciplinary course. Finally, we …

The Bologna Process And Its Implications For U.S. Legal Education, Laurel S. Terry

Faculty Scholarly Works

Virtually all European countries are in the midst of a massive multi-year project intended to dramatically restructure higher education in Europe. This project, which is known as the Bologna Process or Sorbonne-Bologna, began less than ten years ago when four European Union (EU) countries signed a relatively vague agreement. The Bologna Process has now grown to forty-six countries, including all of the EU Member States and nineteen non-EU countries. The Bologna Process participants have agreed to form the European Higher Education Area or EHEA by 2010; among other goals, the EHEA is intended to help Europe better compete in the …

Crafting A Scholarly Persona: A Panel Discussion, Ian Ayres, Paul H. Robinson, Carol Sanger, Kimberly Kessler Ferzan

Faculty Scholarship

This is an edited transcript of Crafting a Scholarly Persona, the Scholarship Section's program from the AALS Annual Meeting in 2007. During this program, three established scholars, Ian Ayres, Paul Robinson, and Carol Sanger, discussed their individual career paths – How they chose their article topics, what the goals of their scholarship are, how they view their research agendas, etc. The discussion was intended roughly to mirror Bravo's Inside the Actor's Studio.

Young Associates In Trouble, William D. Henderson, David T. Zaring

Articles by Maurer Faculty

In the Shadow of the Law. By Kermit Roosevelt. New York: Farrar, Straus and Giroux. 2005. Pp. 346. $24.

Utterly Monkey: A Novel. By Nick Laird. London & New York: Harper Perennial. 2005. Pp. 344. $13.95.

Two recent novels portray the substantively unhappy and morally unfulfilling lives of young associates who work long hours in large, elite law firms. As it turns out, their search for love, happiness, and moral purpose is largely in vain. In the rarefied atmosphere of both fictitious firms, the best and the brightest while away their best years doing document reviews, drafting due diligence memoranda …