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2013

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Full-Text Articles in Legal Profession

Keeping Pace With Technology-Driven Profession, Jodi Nafzger Sep 2013

Keeping Pace With Technology-Driven Profession, Jodi Nafzger

Faculty Scholarship

With the increasing use of E-discovery and paperless judicial systems, members of the legal profession must consider new methods for managing the overwhelming volume of information and be competent with the emerging technologies at the center of modern law practice. It is also increasingly clear that law schools must teach the technology of law practice. The ABA Model Rules of Professional Conduct call for law school curriculum which familiarizes aspiring lawyers with important technology tools. With practical skills training in the use of effective technology tools, the next generation of lawyers can bring an enhanced mastery of business and technology ...


Justadvice: Studying Law In Snapshots, Brenda Bratton Blom, Leigh Maddox Aug 2013

Justadvice: Studying Law In Snapshots, Brenda Bratton Blom, Leigh Maddox

Faculty Scholarship

Access to legal services continues to be a critical need in the United States. Clinical programs in law schools are part of responding to the demand for these services, but often face the challenge of filling gaps left by larger programs serving the poor or responding to unique legal needs. JustAdvice was designed to provide limited advice to a broad range of people with legal needs, unbundling those services where possible. The story of the development, implementation and transformation of the program into a teaching, triage and referral system that importantly links multiple organizations and services is the core of ...


Lawyer, Know Your Safety Net: A Malpractice Insurance Primer For New And Experienced Lawyers, Lauren Schulz, Michael Hunter Schwartz Mar 2013

Lawyer, Know Your Safety Net: A Malpractice Insurance Primer For New And Experienced Lawyers, Lauren Schulz, Michael Hunter Schwartz

Faculty Scholarship

No abstract provided.


Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner Jan 2013

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.


Constructing Modern-Day U.S. Legal Education With Rhetoric: Langdell, Ames, And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli Jan 2013

Constructing Modern-Day U.S. Legal Education With Rhetoric: Langdell, Ames, And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli

Faculty Scholarship

This article explains how lawyers like Christopher Columbus Langdell and James Barr Ames, a disciple of Langdell, employed rhetoric between 1870, when Langdell assumed the deanship at Harvard Law School, and 1920, when law had emerged as a credible academic field in the United States, to construct a persona, that of a scholar, appropriate for the law professor situated within the university. To do so, the article contextualizes the rhetoric with historical background on the law professor and legal education, draws upon rhetorical theory to give an overview of persona theory and persona analysis as a means of conducting the ...


A Good Step In The Right Direction: Illinois Eliminates The Conflict Between Attorneys And Guardians, 38 J. Legal Prof. 161 (2013), Alberto Bernabe Jan 2013

A Good Step In The Right Direction: Illinois Eliminates The Conflict Between Attorneys And Guardians, 38 J. Legal Prof. 161 (2013), Alberto Bernabe

Faculty Scholarship

No abstract provided.


Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, 38 J. Legal Prof. 1 (2013), Alberto Bernabe Jan 2013

Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, 38 J. Legal Prof. 1 (2013), Alberto Bernabe

Faculty Scholarship

No abstract provided.


Survey Of Illinois Law: Waiver Of The Attorney-Client Privilege And Work Product Protection, 37 S. Ill. U. L.J. 825 (2013), Ralph Ruebner, Katarina Durcova Jan 2013

Survey Of Illinois Law: Waiver Of The Attorney-Client Privilege And Work Product Protection, 37 S. Ill. U. L.J. 825 (2013), Ralph Ruebner, Katarina Durcova

Faculty Scholarship

Effective January 1, 2013, two new Illinois Supreme Court rules clarify and limit the waiver of the attorney-client privilege and work product protection rule. Illinois Rule of Evidence 502 ("IRE 502"), which spells out the limitations on waiver, is accompanied by a "clawback provision" in Illinois Supreme Court Rule 201(p) ("Rule 201(p)") that details the procedural steps a disclosing party should take to successfully assert the privilege following an inadvertent discovery disclosure. Additionally, these changes clarify the mandatory duty of the receiving party. IRE 502 was modeled on Federal Rule of Evidence 502 ("FRE 502") and Rule 201 ...


Using A Cultural Lens In The Law School Classroom To Stimulate Self-Assessment, 48 Gonz. L. Rev. 365 (2013), Julie M. Spanbauer Jan 2013

Using A Cultural Lens In The Law School Classroom To Stimulate Self-Assessment, 48 Gonz. L. Rev. 365 (2013), Julie M. Spanbauer

Faculty Scholarship

The American Bar Association is exerting pressure on United States law schools to improve teaching effectiveness by shifting the evaluation of student learning away from input measures to focus upon output-based assessments. Yet, many legal educators appear to be resistant to and fearful of change, in part, perhaps, due to their comfort with teaching methods such as the Socratic or case-dialogue approach, which demands little accountability for teaching effectiveness and provides more time for the pursuit of the traditional goals of scholarly productivity. This method of teaching as currently utilized in law schools is also innately professor-centric performance art. The ...


The Trouble With Lawyer Regulation, James E. Moliterno Jan 2013

The Trouble With Lawyer Regulation, James E. Moliterno

Faculty Scholarship

The American legal profession has been a backward-looking, change-resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers' efforts to change their own practices and entrepreneurs' efforts to enter the legal marketplace to serve the needs of middle- and lower-income clients. When change does come, the legal profession is a late- arriver, usually doing no better than catching up to changes around it that have already become well ensconced. This failure robs society of what could be a positive role of the legal profession in times of change, and it deprives the profession ...


Reflections On Team Production In Professional Schools And The Workplace, Robert J. Rhee Jan 2013

Reflections On Team Production In Professional Schools And The Workplace, Robert J. Rhee

Faculty Scholarship

No abstract provided.


Why Environmental Law Clinics?, Adam Babich, Jane F. Barrett Jan 2013

Why Environmental Law Clinics?, Adam Babich, Jane F. Barrett

Faculty Scholarship

The law clinic has become an increasingly important part of legal education, giving students the opportunity to learn practical skills as well as to internalize core legal values. Pedagogical concerns preclude clinics from letting fear of criticism drive decisions about how they represent clients. The legal profession's idealistic aspirations pose challenges, and political attacks have answered clinicians' efforts to live up to these aspirations. An error underlies such attacks, however: holding lawyers responsible for their clients' legal positions despite the profession's duty to ensure that such positions get a fair hearing.


Lawyers’ Professional Independence: Overrated Or Undervalued?, Bruce A. Green Jan 2013

Lawyers’ Professional Independence: Overrated Or Undervalued?, Bruce A. Green

Faculty Scholarship

This article explores the concept of lawyers’ "professional independence" in the literature of the U.S. legal profession. It begins with some reflections on the conventional meanings of professional independence, which encompasses both the bar’s collective independence to regulate its members and individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. The article suggests that the professional conduct rules are overly preoccupied with protecting lawyers’ professional independence from the corrupting influences of other professionals. The article then turns to an aspect of professional independence ...


Unregulated Corporate Internal Investigations: Achieving Fairness For Corporate Constituents, Bruce A. Green, Ellen S. Progdor Jan 2013

Unregulated Corporate Internal Investigations: Achieving Fairness For Corporate Constituents, Bruce A. Green, Ellen S. Progdor

Faculty Scholarship

This article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief ...


Towards Engaged Scholarship, Nestor M. Davidson Jan 2013

Towards Engaged Scholarship, Nestor M. Davidson

Faculty Scholarship

No abstract provided.


The Relational Infrastructure Of Law Firm Culture And Regulation: The Exaggerated Death Of Big Law, Russell G. Pearce, Eli Wald Jan 2013

The Relational Infrastructure Of Law Firm Culture And Regulation: The Exaggerated Death Of Big Law, Russell G. Pearce, Eli Wald

Faculty Scholarship

In recent years, the ethical infrastructure and culture of law firms has come under attack from commentators, such as Larry Ribstein, Bill Henderson, and Marc Galanter, who, in related ways, predict "the death of Big Law." They assert that the individualistic ethical infrastructure and culture of large firms undermine their commitment to professional values and will result in their failure to prepare for, and to survive, long term economic and technological trends. We identify a contradiction at the heart of this analysis. While these critiques correctly identify the individualistic flaws of law firm culture, they share the same individualistic assumptions ...


The Fully Formed Lawyer: Why Law Schools Should Require Public Service To Better Prepare Students For Private Practice, Sara Rankin Jan 2013

The Fully Formed Lawyer: Why Law Schools Should Require Public Service To Better Prepare Students For Private Practice, Sara Rankin

Faculty Scholarship

It is now commonly accepted that law schools are graduating students who are under-prepared for practice in the real world. In other words, students that perform adequately in the classroom seem to struggle or suffer — to an unnecessary degree — when they enter practice. It is as though law schools are graduating inchoate or “partially-formed” lawyers, who demonstrate classroom fluency but lack meaningful ability to grapple with the wrinkles and complexity of real-world practice. This article argues that to create practice-ready or “fully formed” lawyers, law schools should reform to prioritize hands-on training in public service. It may seem counterintuitive to ...


Achieving Procedural Goals Through Indirection: The Use Of Ethics Doctrine To Justify Contingency Fee Caps In Mdl Aggregate Settlements, Morris A. Ratner Jan 2013

Achieving Procedural Goals Through Indirection: The Use Of Ethics Doctrine To Justify Contingency Fee Caps In Mdl Aggregate Settlements, Morris A. Ratner

Faculty Scholarship

No abstract provided.


Sensibilities For Social Justice Lawyers, Ascanio Piomelli Jan 2013

Sensibilities For Social Justice Lawyers, Ascanio Piomelli

Faculty Scholarship

No abstract provided.


It's Not Just For Death Cases Anymore: How Capital Mitigation Investigation Can Enhance Experiential Learning And Improve Advocacy In Law School Non-Capital Criminal Defense Clinics, 50 Cal. W. L. Rev. 31 (2013), Hugh Mundy Jan 2013

It's Not Just For Death Cases Anymore: How Capital Mitigation Investigation Can Enhance Experiential Learning And Improve Advocacy In Law School Non-Capital Criminal Defense Clinics, 50 Cal. W. L. Rev. 31 (2013), Hugh Mundy

Faculty Scholarship

As this article proposes, law school criminal defense clinics provide an excellent environment to design and implement a non-capital mitigation investigation protocol based on the techniques used in death penalty cases. From a pedagogical perspective, such a model promotes student development of foundational lawyering skills and values, especially in the vital area of “narrative thinking characteristic of everyday practice.” From a pragmatic standpoint, creation of a mitigation investigation model benefits clinic clients and boosts the likelihood that similar investigative methods will become a staple of the student's post-graduate practice.

Part I charts the evolution of capital mitigation investigation and ...


Resistance Is Not Futile: Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly Jan 2013

Resistance Is Not Futile: Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly

Faculty Scholarship

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority ...


Educating Main Street Lawyers, Luz E. Herrera Jan 2013

Educating Main Street Lawyers, Luz E. Herrera

Faculty Scholarship

Discussion about the value of a law degree has focused on the financial success of lawyers. Both defenders and critics of the existing legal education model largely ignore the implications that the cost of legal education and high lawyer fees have on access to justice. While a lawyer’s ability to make a decent living must be addressed when determining the value of a legal education, we fail to take into account the fact that there are millions of individuals in the U.S. who cannot find a lawyer to represent them when they need one. For advocates who believe ...


How Markets Work: The Lawyer’S Version, Mitu Gulati, W. Mark C. Weidemaier Jan 2013

How Markets Work: The Lawyer’S Version, Mitu Gulati, W. Mark C. Weidemaier

Faculty Scholarship

In this article, we combine two sources of data to shed light on the nature of transactional legal work. The first consists of stories about contracts that circulate widely among elite transactional lawyers. Surprisingly, the stories portray lawyers as ineffective market actors who are uninterested in designing superior contracts, who follow rather than lead industry standards, and who depend on governments and other outside actors to spur innovation and correct mistakes. We juxtapose these stories against a dataset of sovereign bond contracts produced by these same lawyers. While the stories suggest that lawyers do not compete or design innovative contracts ...


Lawyers In The Shadows: The Transactional Lawyer In A World Of Shadow Banking, Steven L. Schwarcz Jan 2013

Lawyers In The Shadows: The Transactional Lawyer In A World Of Shadow Banking, Steven L. Schwarcz

Faculty Scholarship

This article, which is based on the author’s keynote address at an April 5, 2013 conference at American University Washington College of Law on “Transactional Lawyering: Theory, Practice, & Pedagogy,” examines the role of transactional lawyers in a world of shadow banking. By reducing the dominance of banks as financial intermediaries, shadow banking has transformed the financial system, causing transactional lawyers to face an array of novel issues. This article focuses on one of those issues: To what extent should transactional lawyers address the potential systemic consequences of their client’s actions? First, the article shows that the legal system ...


Oh, The Treatise!, Richard A. Danner Jan 2013

Oh, The Treatise!, Richard A. Danner

Faculty Scholarship

This foreword to the Michigan Law Review’s 2013 Survey of Books Related to the Law considers the history of the American legal treatise in light of the well-known criticisms of legal scholarship published by Judge Harry Edwards in 1992. As part of his critique, Edwards characterized the legal treatise as “[t]he paradigm of ‘practical’ legal scholarship.” In his words, treatises “create an interpretive framework; categorize the mass of legal authorities in terms of this framework; interpret closely the various authoritative texts within each category; and thereby demonstrate for judges or practitioners what ‘the law’ requires.” Part I examines ...


Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh Jan 2013

Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh

Faculty Scholarship

The analysis herein arises from the collision course between the sweeping reforms mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and a single sentence of the U.S. Code, adopted nearly fifteen years earlier and largely forgotten ever since. Few were likely thinking of Section 106 of the National Securities Market Improvement Act when the Dodd-Frank Act was enacted on July 21, 2010. As applied by the D.C. Circuit less than a year later in Business Roundtable v. SEC, however, that provision’s peculiar requirement of cost-benefit analysis could prove the new legislation’s ...


The Price Of Legal Education, Paul D. Carrington Jan 2013

The Price Of Legal Education, Paul D. Carrington

Faculty Scholarship

No abstract provided.


Systematically Thinking About Law Firm Ethics: Conference On The Ethical Infrastructure And Culture Of Law Firms, Susan Saab Fortney Jan 2013

Systematically Thinking About Law Firm Ethics: Conference On The Ethical Infrastructure And Culture Of Law Firms, Susan Saab Fortney

Faculty Scholarship

To advance the discourse related to law firm ethics and the impact of formal controls and informal influences on lawyer conduct, we convened on April 5, 2013 the Conference on the Ethical Infrastructure and Culture of Law Firms ("Conference" or "Symposium"). The Conference, conducted under the auspices of the Hofstra Law Review and the Maurice A. Deane School of Law at Hofstra University's Institute for the Study of Legal Ethics, was funded in part by the Abraham J. Gross '78 Conference and Lecture Fund at the Maurice A. Deane School of Law at Hofstra University. Experts who have studied ...


The Teaching Of Procedure Across Common Law Systems, Erik S. Knusten, Thomas D. Rowe Jr., David Bamford, Shirley Shipman Jan 2013

The Teaching Of Procedure Across Common Law Systems, Erik S. Knusten, Thomas D. Rowe Jr., David Bamford, Shirley Shipman

Faculty Scholarship

What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems—the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained reflection has been carried out as to the import and impact of this longstanding ...


The Influence Of Systems Analysis On Criminal Law And Procedure: A Critique Of A Style Of Judicial Decision-Making, Bernard E. Harcourt Jan 2013

The Influence Of Systems Analysis On Criminal Law And Procedure: A Critique Of A Style Of Judicial Decision-Making, Bernard E. Harcourt

Faculty Scholarship

This draft analyzes the birth and emergence of the idea of the “criminal justice system” in the 1960s and the fundamentally transformative effect that the idea of a “system” has had in the area of criminal law and criminal procedure. The manuscript develops a critique of the systems analytic approach to legal and policy decision making. It then discusses how that critique relates to the broader area of public policy and contemporary cost-benefit analysis.

The draft identifies what it calls “the systems fallacy” or the central problem with approaching policy questions from a systems analytic approach: namely, the hidden normative ...