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2013

Legal Ethics and Professional Responsibility

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Full-Text Articles in Legal Profession

Limits Of Disclosure, Steven M. Davidoff, Claire A. Hill Mar 2013

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

Seattle University Law Review

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 …


The Market For Corporate Control: New Insights From The Financial Crisis In Ireland, Blanaid Clarke Mar 2013

The Market For Corporate Control: New Insights From The Financial Crisis In Ireland, Blanaid Clarke

Seattle University Law Review

In an ever-changing legal and economic environment, it is incumbent on us to subject all such premises to scrutiny in order to consider their continued application. This Article considers the effect of the MCC on the management of Irish credit institutions in the run-up to the financial crisis. Part II sets the background by explaining how the MCC has become an integral part of takeover regulation in Europe. The weaknesses in the efficient market hypothesis, which underlie the MCC and are summarized in Part III, appear not to have undermined the theory’s credibility in the minds of public policy makers …


Banking And Competition In Exceptional Times, Brett Christophers Mar 2013

Banking And Competition In Exceptional Times, Brett Christophers

Seattle University Law Review

This Article has two main aims: to provide a critical consideration of this contemporary antitrust “revival” from an explicitly political–economic perspective and to point toward some theoretical resources that might facilitate such an assessment.Part II looks backward at the evolution and application of competition law in the banking sector over the relatively longue durée. In this Part, I invoke the concept of “exception” to understand how antitrust policy has developed, and my chief interlocutors are the perhaps unlikely figures of Giorgio Agamben and Karl Marx. Part III looks forward and considers the central question around which the recent resurgence of …


Conceptions Of Corporate Purpose In Post-Crisis Financial Firms, Christopher M. Bruner Mar 2013

Conceptions Of Corporate Purpose In Post-Crisis Financial Firms, Christopher M. Bruner

Seattle University Law Review

American “populism” has had a major impact on the development of U.S. corporate governance throughout its history. Specifically, appeals to the perceived interests of average working people have exerted enormous social and political influence over prevailing conceptions of corporate purpose—that is, the aims toward which society expects corporate decision-making to be directed. In this Article, I assess the impact of American populism upon prevailing conceptions of corporate purpose, contrasting its unique expression in the context of financial firms with that arising in other contexts. I then examine its impact upon corporate governance reforms enacted in the wake of the financial …


Shareholders And Social Welfare, William W. Bratton, Michael L. Wachter Mar 2013

Shareholders And Social Welfare, William W. Bratton, Michael L. Wachter

Seattle University Law Review

This Article addresses the questions of whether and how shareholders matter for social welfare, finding that different and contrasting answers have prevailed during different periods of recent history. Observers in the mid-twentieth century believed that the socioeconomic characteristics of real-world shareholders were highly pertinent to social welfare inquiries. But those observers went on to conclude that there followed no justification for catering to shareholder interest, for shareholders occupied elite social strata. The answer changed during the twentieth century’s closing decades, when observers came to accord the shareholder interest a key structural role in the enhancement of economic efficiency even as …


Central Bank-Led Capitalism?, Andrew Bowman Et Al. Mar 2013

Central Bank-Led Capitalism?, Andrew Bowman Et Al.

Seattle University Law Review

Since the first acute episode of financial crisis in autumn 2008, the world has manifestly changed in dramatic ways that reinforce skepticism and challenge the old assumptions of political economy. Hence this Article about central banks, whose pivotal role in post-crisis capitalism has not been adequately politically or theoretically addressed in any existing literature and can now be opened up by a conjunctural analysis that recognises uncertainty and mutability. There are several reasons why this is an intellectually and politically interesting task. Central banks have become an object of controversy and public attention after being pivotally involved in crisis management, …


Making Money: Leverage And Private Sector Money Creation, Margaret M. Blair Mar 2013

Making Money: Leverage And Private Sector Money Creation, Margaret M. Blair

Seattle University Law Review

Contrary to the beliefs of most macroeconomists, the financial sector in the United States has grown too large in the last few decades as a consequence of financial innovation that has encouraged the use of too much “leverage” (financing with debt) by financial institutions (as well as by consumers and other borrowers). In Part II, I connect the dots between excessive leverage, risk, and financial market volatility. In Part III, I explore the role that the “shadow-banking sector” has had in driving leverage. In Part IV, I explain why leverage at the level of financial institutions matters for the macroeconomy. …


The Governance And Disclosure Of The Firm As An Enterprise Entity, Yuri Biondi Mar 2013

The Governance And Disclosure Of The Firm As An Enterprise Entity, Yuri Biondi

Seattle University Law Review

During recent decades, the rapid pace of financial markets involving new modes of management, governance, and regulation has framed business firms. This corporate drift toward financialization is summarized under the “shareholder value” label. What do financial markets do? Unequivocally, they organize trading on shares that are securities: tradable financial entitlements established by law, which formalize expectations, and claims of financial rents paid by the issuing company. Actually, how continued quotation on share exchanges came to be the barometer of economic or social welfare is a different matter. The latter adoption has required quite a great leap from “the euthanasia of …


Rationales And Designs To Implement An Institutional Big Bang In The Governance Of Global Finance, Emilios Avgouleas Mar 2013

Rationales And Designs To Implement An Institutional Big Bang In The Governance Of Global Finance, Emilios Avgouleas

Seattle University Law Review

The colossal challenges facing international finance pertain to both its governance system and its dual utility and speculative functions, which have become ever more intertwined with the advent of financial innovation. In the aftermath of the Global Financial Crisis (GFC), a number of significant reforms are under way to address the second issue, including additional capital and liquidity requirements for banks, measures to battle interconnectedness in the financial sector, new resolution regimes that would allow banks to fail more easily, and stricter frameworks for bank supervision and monitoring of systemic risk. Yet limited progress has been made with respect to …


Framing Address: A Framework For Analyzing Financial Market Transformation, Steven L. Schwarcz Mar 2013

Framing Address: A Framework For Analyzing Financial Market Transformation, Steven L. Schwarcz

Seattle University Law Review

The title of this Symposium originally was “Rethinking Financial and Securities Markets.” It is, of course, somewhat presumptuous for scholars to try to rethink financial markets per se. Markets, including financial markets, are driven primarily by supply and demand. But scholars can and should try to influence the future of financial markets by rethinking their fundamental aspects. This Symposium presents work from leading scholars in the fields of law, economics, finance, and accounting. I will try to frame the discussion from the perspectives of these four disciplines. First, however, we need to identify what it is about financial markets that …


Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss Mar 2013

Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss

Scott A Moss

For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service market, how …


How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski Mar 2013

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

Cornell Law Faculty Publications

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 …


Legal Education: Rethinking The Problem, Reimagining The Reforms, Deborah L. Rhode Feb 2013

Legal Education: Rethinking The Problem, Reimagining The Reforms, Deborah L. Rhode

Pepperdine Law Review

Whether or not law schools are in a crisis, it is certainly true that legal education currently faces a number of significant challenges. The fundamental problem is a lack of consensus over what the problem is. Legal educators and regulators are developing well-intended but inadequate responses to the symptoms, not the causes of law school woes. In addition to identifying the problem, this Article discusses potential reforms. Financial issues represent a significant source of much of the current criticisms face by law schools today. Tuition rates have increased at a pace far outstripping the steep hikes seen at universities as …


How To Make Rules For Lawyers: The Professional Responsibility Of The Legal Profession, Stephen Gillers Feb 2013

How To Make Rules For Lawyers: The Professional Responsibility Of The Legal Profession, Stephen Gillers

Pepperdine Law Review

When considering the professional responsibilities of American lawyers, two questions often arise: (1) whether a particular rule strikes the right balance among the multiple interests it purports to reconcile and (2) whether in a particular circumstance a lawyer's or law firm's behavior complied with the governing rules. This article explores a third question. What is the responsibility of the profession itself when, through its various institutions and especially bar associations, it asks courts, lawmakers, or agencies to adopt particular rules governing the conduct of lawyers? Rather than exploring the discussing the conduct of individual lawyers or the correctness of any …


Louis D. Brandeis And The Lawyer Advocacy System, Robert F. Cochran Jr. Feb 2013

Louis D. Brandeis And The Lawyer Advocacy System, Robert F. Cochran Jr.

Pepperdine Law Review

The law practice of Louis Brandeis serves as an appropriate vehicle for examining both the history of the legal profession in the United States and the role of lawyers as philanthropists. Brandeis was one of America's most successful and innovative lawyers at the turn of the twentieth century, and serves as a role model for lawyers in his dedication to public service. Brandeis, of course, is best known for his work as a Justice on the United States Supreme Court; however, he is less well known for his work as a lawyer-though he practiced law for 40 years before he …


The Lawyer Of The Future, Deanell Reece Tacha Feb 2013

The Lawyer Of The Future, Deanell Reece Tacha

Pepperdine Law Review

This piece introduces the Pepperdine Law Review symposium issue for Volume 40, publishing articles derived from the April 20, 2012 The Lawyer of the Future: Exploring the Impact of Past and Present Lawyers and the Lessons They Provide for Future Generations symposium, which explored the role of the lawyer in American society-past, present, and future.


The Case For "Higher Law", John Warwick Montgomery Feb 2013

The Case For "Higher Law", John Warwick Montgomery

Pepperdine Law Review

No abstract provided.


Report To The Connecticut Judicial Branch Access To Justice Commission, Melanie B. Abbott, Leslie C. Levin, Stephen Wizner Feb 2013

Report To The Connecticut Judicial Branch Access To Justice Commission, Melanie B. Abbott, Leslie C. Levin, Stephen Wizner

Leslie C. Levin

No abstract provided.


Evaluation Of Judicial Performance: A Tool For Self-Improvement, Richard L. Aynes Feb 2013

Evaluation Of Judicial Performance: A Tool For Self-Improvement, Richard L. Aynes

Pepperdine Law Review

The quality of our judicial system, like other institutions, is a function of the work performed by those who are afforded major roles in the dispensation of justice. Unmistakably. judges, jurors and lawyers assume key roles in this process. Professor Aynes, who is a member of the A.B.A.'s Evaluation of Judicial Performance Committee, recognizes that both judges and lawyers, unlike jurors, are professionals expected to bring more to the bench than honesty, good faith and diligence. The author observes that while efforts to improve the daily performance of attorneys have been well under way since the early 1970's, it i …


The Practice Of Teaching, The Practice Of Law: What Does It Mean To Practice Responsibly?, Howard Lesnick Feb 2013

The Practice Of Teaching, The Practice Of Law: What Does It Mean To Practice Responsibly?, Howard Lesnick

howard lesnick

No abstract provided.


Panelist, Can Law Schools Prepare Students To Be Practice Ready?, R. Michael Cassidy Jan 2013

Panelist, Can Law Schools Prepare Students To Be Practice Ready?, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.


Guiding The Invisible Hand: The Consumer Protection Function Of Unauthorized Practice Regulation, Elizabeth Michelman Jan 2013

Guiding The Invisible Hand: The Consumer Protection Function Of Unauthorized Practice Regulation, Elizabeth Michelman

Pepperdine Law Review

No abstract provided.


The Grand Jury Subpoena: Is It The Prosecutor's "Ultimate Weapon" Against Defense Attorneys And Their Clients?, Tara A. Flanagan Jan 2013

The Grand Jury Subpoena: Is It The Prosecutor's "Ultimate Weapon" Against Defense Attorneys And Their Clients?, Tara A. Flanagan

Pepperdine Law Review

No abstract provided.


Mandatory Disclosure: California Bar Refuses To Adopt Proposed Rule To Confront Client Perjury , David B. Wasson Jan 2013

Mandatory Disclosure: California Bar Refuses To Adopt Proposed Rule To Confront Client Perjury , David B. Wasson

Pepperdine Law Review

No abstract provided.


Teaching Legal Ethics In A Program Of Comprehensive Skills Development, James E. Moliterno Jan 2013

Teaching Legal Ethics In A Program Of Comprehensive Skills Development, James E. Moliterno

James E. Moliterno

No abstract provided.


Professional Preparedness: A Comparative Study Of Law Graduates' Perceived Readiness For Professional Ethics Issues, James E. Moliterno Jan 2013

Professional Preparedness: A Comparative Study Of Law Graduates' Perceived Readiness For Professional Ethics Issues, James E. Moliterno

James E. Moliterno

No abstract provided.


Practice Setting As An Organizing Theme For A Law And Ethics Of Lawyering Curriculum, James E. Moliterno Jan 2013

Practice Setting As An Organizing Theme For A Law And Ethics Of Lawyering Curriculum, James E. Moliterno

James E. Moliterno

No abstract provided.


Legal Education, Experiential Education, And Professional Responsibility, James E. Moliterno Jan 2013

Legal Education, Experiential Education, And Professional Responsibility, James E. Moliterno

James E. Moliterno

No abstract provided.


Broad Prohibition, Thin Rationale: The Acquisition Of An Interest And Financial Assistance In Litigation Rules, James E. Moliterno Jan 2013

Broad Prohibition, Thin Rationale: The Acquisition Of An Interest And Financial Assistance In Litigation Rules, James E. Moliterno

James E. Moliterno

No abstract provided.


Why Formalism?, James E. Moliterno Jan 2013

Why Formalism?, James E. Moliterno

James E. Moliterno

No abstract provided.