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Full-Text Articles in Legal Profession

Conflicts Of Interest And Institutional Litigants, Curtis E.A. Karnow Oct 2006

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 ...


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

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.


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 Sep 2006

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 ...


Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz Aug 2006

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

ExpressO

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.


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

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

ExpressO

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


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 Apr 2006

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

ExpressO

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 ...


Dropping The Hot Potato: Rescusitating The Permissive Withdrawal Rules In The Model Rules Of Professional Conduct, Henry M. Kelln Mar 2006

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

ExpressO

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


Legal Doubletalk And The Concern With Positional Conflicts: A "Foolish Consistency?", Helen A. Anderson Mar 2006

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

ExpressO

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 ...


Even Heroes Need To Talk: Psycho-Legal Soft Spots In The Field Of Asylum Lawyering, Tehila Sagy Mar 2006

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

ExpressO

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 ...


Attorneys As Gatekeepers: Sec Actions Against Lawyers In The Age Of Sarbanes-Oxley, Lewis D. Lowenfels, Alan R. Bromberg, Michael J. Sullivan Feb 2006

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

ExpressO

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 ...


Legal Doubletalk And The Concern With Positional Conflicts: A “Foolish Consistency”?, Helen A. Anderson Feb 2006

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

ExpressO

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 ...


Law As Rationalization: Getting Beyond Reason To Business Ethics, Jeffrey Marc Lipshaw Feb 2006

Law As Rationalization: Getting Beyond Reason To Business Ethics, Jeffrey Marc Lipshaw

ExpressO

Embedded in the way we use the law is the tendency of human reason to justification, in the words of one philosopher, “the thirst for rationality that creates lies.” I contend that this tendency is exacerbated by the conflation of what is knowable as a matter of science, and that which we might believe is normative. I rely on Kant’s critique of theoretical and practical reason to assess claims to objectivity in social science approaches to law, and to suggest it is not surprising that the operation of theoretical and practical reason would tend to the conflation of the ...


Implementation Of Sarbanes-Oxley: New Rules For Lawyers And What Lawyers Think, Olga Yevglevskaya-Wayne Jan 2006

Implementation Of Sarbanes-Oxley: New Rules For Lawyers And What Lawyers Think, Olga Yevglevskaya-Wayne

ExpressO

This paper discusses practical implications of Sarbanes-Oxley for lawyers. Emphasis is on the new federal rules of professional responsibility the Act sets up. The paper includes the views of various renowned practitioners interpreting and using these rules. The paper also contains suggestions for how the Securities and Exchange Commission could potentially improve those areas that are proving problematic for attorneys so as to better effectuate the purpose of this major new law, in light of its legislative history and intent, which are also discussed in the paper.


What's In A Name?: Cause Lawyers As Conceptual Category, Corey S. Shdaimah Jan 2006

What's In A Name?: Cause Lawyers As Conceptual Category, Corey S. Shdaimah

ExpressO

Stuart Scheingold's and Austin Sarat's "Something to Believe In: Politics, Professionalism, and Cause Lawyering," (Stanford University Press, December 2004) draws on a decade of empirical and theoretical work on cause lawyering. Scheingold’s and Sarat’s law and society scholarship contributes to our knowledge of lawyering, the law, work with clients and social movements, and the interplay between what Ewick and Silbey have called "legality" and the social world. Their cross-disciplinary work makes a significant contribution to the social sciences as well as to the field of legal studies. This review examines the utility of cause lawyering as ...