Digital Commons Network^™

Bankrupt Marketplace: First Amendment Theory And The 2016 Presidential Election, Leonard M. Niehoff

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In this article I advance two arguments. The first is that 2016 was a particularly important year for freedom of speech and the press, although not for conventional reasons. The second is that hte events of 2016 revealed that one of the essential components of our democracy - the central role that free expression plays in the democratic process - is in a state of serious dysfunction, if not crisis.

Reimagining Legal Education: Incorporating Live-Client Work Into The First-Year Curriculum, Nancy Vettorello, Beth Hirschfelder Wilensky

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Since 2015, Legal Practice faculty have partnered with local legal services organizations and the law school’s own clinics to provide our 1L students with client interaction, under the close supervision of experienced attorneys. So far, our students have worked with the Michigan Immigrant Rights Center, Legal Services of South Central Michigan, and the school’s Unemployment Law Clinic.

Model Rule 5.7 And Lawyers In Government Jobs - How Can They Ever Be Non-Lawyers, Hugh D. Spitzer

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This article focuses on the application of the Rules of Professional Conduct to licensed attorneys who serve in non-lawyer jobs in government. There is a fair amount of literature about members of the bar who serve as staff counsel in legislatures or executive agencies. There is also literature on Rule 5.7 of the ABA Model Rules of Professional Conduct (“Responsibilities Regarding Law-related Services”) in the context of practicing lawyers who participate in ancillary “non-lawyering” business activities. Model Rule 5.7 deals with “services that might reasonably be performed” or “are related to the provision of legal services” but which are permitted …

The Advent Of Lawyers In Japanese Government, Daniel H. Foote

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Until 2003, Japanese lawyers were prohibited by law from entering full-time employment in governmental bodies. That year, in line with recommendations by the Justice System Reform Council, the Lawyers Act was amended to permit lawyers to undertake such employment. Incorporating information and insights from interviews with former government lawyers and other concerned parties, this article examines the rise in the hiring of government lawyers and its impact. The article considers factors that have contributed to the increase, examines the roles played by these lawyers, considers prospects for the future, and discusses implications for government, the legal profession, clients, and legal …

Using Advanced Conflict Waivers To Teach Drafting, Ethics, And Professionalism, Edward R. Becker

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On a substantive and ethical level, I tell my students to take on faith that if you were to do all of this and take all this into account, if you were to apply the conflict of interest and the disqualifications rules, it could make it extremely difficult or many of the firms involved in these matters to avoid being conflicted out; especially, if the parties and the kind of firms involved were not dealing with these conflicts and issues until a problem arose. The question I ask my students again at this point is what could be done. What …

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

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The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of …

Friedrichs: An Unexpected Tool For Labor, Heather Whitney

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Forging Path For Women's Rights In Customary Law, Tamar Ezer

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We Are What We Tax, Mary Louise Fellows, Grace Heinecke, Linda Sugin

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Bankruptcy And Unbundling: Oil And Water, Gary E. Sullivan, Jessica M. Zorn

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Cultural Evolution Or Revolution? The Millennial's Growing Impact On Professionalism And The Practice Of Law, Jan L. Jacobowitz, Katie M. Lachter, Gabriella Morello

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Rebellious Pedagogy And Practice, Anthony V. Alfieri

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Gerald Lopez's ground breaking book, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice, introduced new critical pathways and perspectives for clinical educators to better understand and enhance their advocacy, teaching, and scholarship. Indeed, Lopez's interdisciplinary investigation of the local, sociocultural context of the lawyering process produced a marked shift in both the pedagogy and the practice of public interest law, particularly civil rights and poverty law. A quarter century after its publication, Rebellious Lawyering stands out not only for its contextual critique of lawyering theory and practice, but also for its multifaceted integration of law, cultural studies, race …

The Day Doctrine Died: Private Arbitration And The End Of Law, Myriam E. Gilles

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This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders.

Meanwhile, and also in the early 1980s, federal courts began …

Class Warfare: The Disappearance Of Low-Income Litigants From The Civil Docket, Myriam Gilles

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In recent years, much attention has been paid to the startling disparities in income and wealth in contemporary U.S. society. The enormous concentration of economic power in the top 1% is the culmination of decades of significant income and wealth gains for the top, combined with stagnant or decreasing growth for the majority - a trend that continues apace. But nowhere is the gap more glaring than in the civil docket, where class actions brought by or on behalf of low-income consumers and employees are on the verge of disappearing.

To be sure, the decline in class actions is only …

Small Firms Poised To Thrive In Today's Legal Market, Pamela Bucy Pierson, Emily Kornegay Price

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Reentering Survivors: Invisible At The Intersection Of The Criminal Legal System And The Domestic Violence Movement, Courtney K. Cross

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Like all returning citizens, women coming home after incarceration face significant challenges to successful reentry. In addition to the collateral consequences of their criminal convictions, reentering women also encounter uniquely gendered obstacles. This Article explores one such obstacle: the relationship between women's reentry and domestic violence. Women on probation or parole who are also experiencing domestic violence too often fall into a blind spot in which the structure of community supervision pressures them to remain in unsafe homes and also punishes them when the abuse they endure interferes with their ability to comply with the conditions of their release. Because …

Think Like A Businessperson: Using Business School Cases To Create Strategic Corporate Lawyers​., Alicia J. Davis

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For the past twenty-five years, my academic and professional pursuits have straddled the line between business and law. I majored in business administration in college and then worked as an analyst in the Corporate Finance department at a bulge bracket Wall Street firm. After completing a JD/MBA, I returned to investment banking with a focus on middle-market mergers and acquisitions (M&A) and subsequently practiced law with a focus on private equity and M&A. Finally, in 2004, I found my current home as a corporate law professor. In my courses, which include Mergers & Acquisitions, Enterprise Organization, and Investor Protection, I …

Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger

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This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …

Against Immutability, Jessica A. Clarke

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Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and …

Identity And Narrative: Turning Oppression Into Client Empowerment In Social Security Disability Cases, Jonel Newman

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Characteristics Of Attorneys Representing Children In Child Welfare Cases, Britany Orlebeke, Andrew Zinn, Xiaomeng Zhou, Donald N. Duquette

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Every day in state and local courts throughout the United States, judges are called upon to decide who should have the responsibility for the immediate and long-term care of neglected and abused children. Federal recognition of the right to independent advocacy for children subject to these proceedings originates with the 1974 Federal Child Abuse Prevention and Treatment Act (CAPTA). As a condition of receiving federal funds for child abuse prevention services through CAPTA, states must provide for the appointment of an appropriately trained guardian ad litem (GAL) for every child whose case results in a judicial proceeding. A guardian ad …

The Legacy Of Senator Edmund Muskie, Robert Hirshon

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I am delighted to be with you this morning. My relationship with Senator Edmund Muskie actually predated my birth. It arose from my grandfather's ownership of a building in Waterville, Maine. On the ground floor was a dry goods and clothing store operated by my grandparents and frequently visited by Jane Gray, the future wife of Edmund Muskie. On one of the upper floors in 'the building was a small office that my grandfather rented to an aspiring young lawyer who had recently graduated from Cornell Law School and had returned to Maine to practice law. That young lawyer was …

Economics, Eq, And Finance: The Next Frontier In Legal Education, Pamela Bucy Pierson

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Resistance Songs: Mobilizing The Law And Politics Of Community, Anthony V. Alfieri

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O'Connor's Canons: The Professional Responsibility Jurisprudence Of Justice Sandra Day O'Connor, Steven H. Hobbs

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Institutionalizing The Uspto Law School Clinic Certification Program For Transactional Law Clinics, Jennifer S. Fan

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With 188 transactional law clinics nationwide and the United States Patent and Trademark Office (“USPTO”) Law School Clinic Certification Program (“Program”) recently established as a statutory program of the USPTO, this Article argues that every transactional clinic that works on trademark and patent applications should apply to become part of the Program. In satisfying the participation requirements of the Program, transactional law clinics will usher in a new, uniform way to educate aspiring intellectual property attorneys. As a result, the law students will not only be “practice ready,” but also more effective attorneys once they are in practice. Participating in …

Revisiting The Client Conundrum: Whom Does Lawyer For A Government Represent, And Who Gives Direction To That Governmental Lawyer?, Hugh D. Spitzer

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The issue of identifying a government attorney’s client is age-old, and Washington’s Rules of Professional Conduct provide somewhat different answers for lawyers who are government employees and for those who are with private firms. The matter becomes even more interesting when a government entity’s attorney is a publicly-elected legal official: an attorney general, prosecuting attorney, or city attorney in the case of Seattle and a number of other cities around the country. Others have written thoughtful pieces on the topic from a national perspective, and there is at least one excellent but slightly outdated piece by District of Columbia municipal …

Financing Innovation: Legal Development Of Intellectual Property As Security In Financing, 1845–2014, Xuan-Thao Nguyen

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There is a need for both traditional and online lenders to appreciate the intellectual property assets held by small businesses. The intellectual property assets should be included in the analytics in assessing the overall health of a business seeking a loan or a line of credit for its new innovative product, idea, or vision. The Article ends with a brief conclusion that in order to maintain the United States’ innovative edge, attention to the access to financing by small businesses must be at the center of the discussion, and intellectual property must be recognized as part of that center.

Experience The Future: Papers From The Second National Symposium On Experiential Education In Law: Alliance For Experiential Learning In Law, Christine N. Cimini, Roberto L. Corrada, Myra Berman, Christine E. Cerniglia, Katherine R. Kruse

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On June 13-15, 2014 the Second National Symposium on Experiential Educa­tion in Law took place in Greensboro, North Carolina. The Alliance for Experi­ential Learning in Law and Elon University School of Law hosted the symposium, with the support of Northeastern University School of Law. Presenters included professors and practitioners across multiple disciplines, in­cluding business, medicine, and architecture, and they shared their insights about the value of experiential education in their fields. Working from the Alliance for Experiential Learning in Law also presented their findings and distributed a set of working papers, which eventually culminated into this report. The report covers …

The Trials Of Clinical Education, Jonathan H. Oberman, Ekow N. Yankah

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The article discusses the role of clinical education in law schools, emphasizing its value in bridging the gap between theoretical learning and practical experience. It highlights the challenges faced by students in clinical settings, such as the disparity between the meticulous preparation in classrooms and the often abrupt realities of courtroom decisions. The authors argue that while clinical education provides invaluable practical skills, it also risks disillusioning students when real-world outcomes contradict academic expectations. They advocate for a balanced approach that integrates both theoretical and practical training to prepare effective lawyers.