Digital Commons Network^™

Poverty Law And Civil Procedure: Rethinking The First-Year Course, Helen Hershkoff

Faculty Articles

This Essay argues that poverty and inequality issues should be integrated into first-year civil procedure courses. It examines what framework could be achieved to examine these issues in a civil procedure context. And finally, it connects the author’s proposed approach with the broader mission of legal education.

Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum,, Bernard D. Reams Jr., Michael P. Forrest

Faculty Articles

Popular consensus suggests that the Employee Retirement Income Security Act (“ERISA”) is a mess, and one of historic proportions. ERISA’s comprehensive reach to protect employer-provided benefits has in practice produced unintended, if not contradictory, results.

Congress passed ERISA over thirty years ago to protect the rights of employees who benefit from employer pension and welfare benefit plans. It did so with a series of regulations that promote uniformity in litigation across the various states through “strong preemption language.” The goal of uniformity arguably benefits workers by imposing regular standards of conduct which lend predictability to the scope of litigation, or …

Maccrate (In)Action: The Case For Enhancing The Upper-Level Writing Requirement In Law Schools, Kenneth D. Chestek

Faculty Articles

In 2001 the American Bar Association amended the Standards for Accreditation of Law Schools to require for the first time a rigorous writing experience after the first year During the summer of 2004 the author conducted a nationwide survey to determine how law schools responded to this change The author found that most schools did little more than to require students to take at least one course which was evaluated by means of an academic paper rather than an examination The author concludes that this is probably not the response the ABA had hoped for but suggests that a 2005 …

Corporate Investigations, Attorney-Client Privilege, And Selective Waiver: Is A Half-Privilege Worth Having At All?, Colin P. Marks

Faculty Articles

As the title suggests, this article is an analysis of the selective waiver doctrine, which allows a party to disclose materials protected by the attorney-client and work product privileges to the government during investigations without waiving the privilege as to third-party litigants. Specifically, the article analyzes the development of the selective waiver doctrine and why recent policies adopted by governmental agencies, specifically the Department of Justice and SEC, have made this doctrine a forefront of conversation amongst litigators, legislators and academics. But is a blanket adoption of the selective waiver doctrine wise?

Courts have taken a variety of approaches to …

The New Jersey Constitution: Positive Rights, Common Law Entitlements, And State Action, Helen Hershkoff

Faculty Articles

During the last half of the twentieth century, the New Jersey Supreme Court built an impressive reputation for its “intellectually rigorous and forcefully progressive” interpretations of state constitutional law. The court’s status as a jurisprudential entrepreneur rests, in part, on decisions that involve social and economic life—most notably, its enforcement of the positive right to an adequate education. However, the court’s commitment to material well-being has not stopped at the border of state action. In contrast to federal doctrine, the New Jersey Supreme Court has shown a willingness to reconfigure contract and property rights in light of public policies that …

Life In The Early Days Of Lawyer Advertising: Personal Recollections Of A Bates Baby, Gerald S. Reamey

Faculty Articles

The Supreme Court decision in Bates v. State Bar of Arizona ruled that lawyer advertising is commercial speech subject to First Amendment protection. However, a Texas disciplinary statute provided that “a lawyer shall not publicize himself, his partner, or associate…through newspaper or magazine advertisements, radio or television announcements…or other means of commercial publicity.” Despite being clearly unconstitutional, the Texas statute remained law for five years. Finally, responding to Bates in September 1977, the Texas State Bar Board of Directors adopted an official statement which allowed for limited advertising in newspapers, and only to the extent which was provided for by …

How Children’S Lawyers Serve State Interests, Martin Guggenheim

Faculty Articles

I am pleased to be a part of this conference and to have this opportunity to expand my focus of concern over providing children with lawyers from the details of the role of lawyers to a consideration of the costs associated with providing them. This article is limited to the subject of representing children in child welfare cases. In this article, I will recount the history of child welfare practice in New York City. I do this because it is a history I know best, having practiced there since I graduated from law school in 1971. I also believe this …

Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman

Faculty Articles

This article will discuss the scope of services and rationale for the right to a free lawyer in civil matters as is the case in criminal cases. This right is currently provided in the 49 European member countries in the Council of Europe (COE), Australia, Canada, India, New Zealand, Hong Kong, Japan, Zambia, South Africa, and Brazil. Frequent reference will be made to a chart in the appendix, which condenses extensive information about programs in each of these countries. The article’s general conclusion regarding the foreign programs is that the right to a free lawyer in civil matters is a …

Civil Gideon: A Human Right Elsewhere In The World, Raven Lidman

Faculty Articles

The right to free counsel in civil cases is widely accepted around the world but not in the United States. In England the right originated over five hundred years ago. Twelve European countries provided the poor with free lawyers even before 1979, when the Council of Europe required its members to do so as a matter of international human rights law. The standards for eligibility and scope of legal services vary, and means and merit tests are common.

Taking Diversity Seriously: Affirmative Action And The Democratic Role Of Law Schools: A Response To Professor Brown, Carla Pratt

Faculty Articles

No abstract provided.

A Lesbian Centered Critique Of “Genetic Parenthood”, Julie Shapiro

Faculty Articles

Recent years have seen a proliferation of alternative reproductive technologies and the ready availability of reliable DNA testing. These developments have lead to enormous uncertainty concerning the meaning of a genetic tie between adult and child. On the one hand, reproductive technology has lead to a robust market where genetic material is readily bought and sold. This suggests it is not the root of parental status. On the other hand, DNA testing has allowed men to contest paternity of children, asserting that they are not genetically related to them. And their challenges have often been successful. Genetic linkage is particularly …

Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve

Faculty Articles

The article offers a look on the Somerset's Case that served as a milestone in the campaign to abolish slavery in Great Britain. The case become famous in the Anglo-American law of slavery, with its proceedings widely circulated in periodicals. However, historians have argued about what the ruling was and its effects. It has been known in English slavery law that courts prior to the case generally agreed that English law governed status, but also limited slavery, for slaves who came to England.

Immigration And Evil: The Religious Challenge, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Detention Decisions And Access To Habeas Corpus For Immigrants Facing Deportation, Nancy Morawetz

Faculty Articles

In the wake of the recent Supreme Court decisions on the legal rights of “enemy combatants,” this Article highlights the continuing problems of immigration detainees and their lack of access to adequate judicial process. Based on the author’s extensive research into habeas corpus actions ªled by inmates in the Oakdale Federal Detention Facility, this Article explores the consequences of limiting habeas actions to courts in the territorial site of the prison. Because the Federal District Court for the Western District of Louisiana refuses to issue stays of removal, detainees are deported before their habeas actions can be judged on the …

Federal Rules Update: Who Makes The Rules?, David A. Schlueter

Faculty Articles

There are a number of amendments to the Federal Rules of Criminal Procedure and Evidence which were approved and would become effective as of December 1, 2005. The amendment to Criminal Rule 12.2 permits the court to exclude evidence on a defendant’s mental condition if the defense failed to submit a mental examination. The amendment to Criminal Rules 29, 33, and 34 all concern the timing of requests for extensions of time. Criminal Rule 45 will be amended to conform with the changes to Rules 29, 33, and 34. The amendment to Criminal Rule 32.1 provides a right of allocution …

The Ethics Of Copyrighting Ethics Rules, Michael S. Ariens

Faculty Articles

The American Bar Association’s (“ABA”) practice of requiring students to purchase the Model Rules of Professional Conduct is exploitative and unethical. The ABA uses its role in training lawyers to create a situation which all but requires law students and bar applicants to purchase the organization’s own Model Rules. The fact that the Model Rules constitute a substantial revenue stream for the ABA is due less to lawyers’ desire to brush up on Model Rules of Professional Conduct, which are not laws, than to the ABA's direct role in approving law schools and its indirect role in licensing lawyers.

Law …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

The definition of securities is constantly evolving, and court cases help define this concept. Other cases help illuminate standing to sue. Two courts considered the application of the Texas Securities Acts in multi-state situations.

The State Securities Board amended its hearings rules to give the Director of Inspections and Compliance Division authorization to sign a notice of hearing in administrative cases. The Board initiated numerous enforcement actions against issuers who did not register their securities. It also issued a number of no-action letters dealing with issuers. In addition, the Board amended its rules for registration of dealers several times during …

Reflections On Complicity, Julie Shapiro

Faculty Articles

The author of this article participated in the litigation of Andersen v. King County, Washington in which lesbian and gay couples unsuccessfully sought access to marriage. Although part of the plaintiffs' litigation team, she is a feminist anti-assimilationist and as such, is generally opposed to articulating marriage as a priority of the lesbian/gay civil rights movement. Confronted with the undeniable reality that marriage has become the central demand of the lesbian and gay movement, the author explores the tensions and contradictions encountered during the litigation. The article examines how one might critically manifest resistance even while working for an assimilationist …

Catastrophic Financial Failures: Enron And More, Geoffrey P. Miller

Faculty Articles

One can only try to understand how the catastrophes happened in the hope of avoiding them in the future. This Article looks across these six cases-WorldCom, Enron, Lincoln Savings, HIH, EIEI, and BCCI-and attempts to identify common threads that might help prevent similar disasters in the future. Each of these six events was a complex phenomenon with its own etiology, development, and resolution. Discussing any one of them in detail, much less comparing all six, is beyond the scope of this Article, which hopes only to touch upon some of the apparent common features that, upon further inquiry, might yield …

Misrepresentation By Lawyers About Credentials Or Experience, Vincent R. Johnson, Shawn M. Lovorn

Faculty Articles

Authorities appropriately condemn dishonesty by attorneys in the broadest terms. In moving from moral principles to legal liability, however, it is important to think carefully about when a lawyer’s conduct misleads a client in a way that is actionable. Whether liability will be imposed depends upon the nature of the misrepresentation, the status of the plaintiff, the theory of liability, and the presence of competing interests or special considerations.

Basic principles of American tort law provide useful guidance in defining the disclosure obligations of attorneys. But like tort law itself, the answers are not simple. What an attorney may, must, …

Navigating The Hidden Obstacles To Ex-Offender Reentry, Anthony C. Thompson

Faculty Articles

As federal and state correctional institutions steadily release record numbers of ex-offenders each year, the communities into which prisoners are released are unprepared to sustain the economic and social burden of the massive reentry movement. As a result, reentering ex-offenders lack the support needed to reintegrate themselves into society and to lead productive, law-abiding lives. This Article first explores political trends that account for the increase in incarceration rates over the last two decades and the resulting social, legal, and economic challenges of reentry both ex-offenders and their communities face. Only recently has the government begun to respond to these …

A Framework For The Regulation Of Securities Market Intermediaries, Stephen J. Choi

Faculty Articles

This Essay examines the role of private institutions in promoting strong securities markets. Recent scandals in the United States highlight both the importance and the fallibility of the securities market intermediary institutions to which investors typically turn for protection, such as auditors, analysts, and proxy advisory firms. From the perspective of investor welfare, this Essay discusses the various forms of institution failure and the efficacy of recently promulgated reforms. First, the paper provides a taxonomy of the various forms of securities market intermediary institution failure. Second, the essay compares the failings of the market against the fallibility of regulators. Not …

“Absolute And Perfect Candor” To Clients, Vincent R. Johnson

Faculty Articles

The fiduciary duty owed to clients by attorneys is defined by the reasonable-care standard of negligence as opposed to the all-encompassing “absolute and perfect candor” rhetoric frequently used to describe the duty owed. Words have meanings and, though the use of “absolute and perfect candor” serves a beneficial purpose, reminding attorneys of the special duty owed to their clients, the fiduciary duty owed to clients is not so all encompassing and impractical.

Modern case law fails to establish that a broadly applicable duty of “absolute and perfect” candor applies to the attorney-client relationship, except in a limited number of situations. …

Serving Pro Se Patrons: An Obligation And An Opportunity, Kerry Fitz-Gerald

Faculty Articles

Historically, non-lawyer patrons in law libraries have been viewed with discomfort, and library services, even in libraries open to the public, have been geared toward members of the legal community. However, changes in both the needs of the public and in the demographics of library patrons are challenging the traditional allocation of services in public law libraries. This article discusses the reasons for the traditional allocation of services, the cultural and economic forces that are bringing the public to law libraries in greater numbers, and new modes of service that can better meet the needs of public patrons.

Sarbanes-Oxley And The Oklahoma Rules Of Professional Conduct Recent Developments In Oklahoma, Drew L. Kershen

Faculty Articles

No abstract provided.

Federal Courts, Magistrate Judges, And The Pro Se Plaintiff, Lois Bloom, Helen Hershkoff

Faculty Articles

The literature on access to justice generally uses the term "legal assistance" to mean the provision of counsel, whether subsidized by the government or compensated by contingency fee or other arrangement, to a party who cannot afford representation. Access to justice, however, should also entail other forms of legal assistance, including a court structure that responds fairly and efficiently to claimants who lack the legal equipage needed to present their cases in an effective way. In this Article, we describe various institutional adaptations made by one federal district court in response to the increasing number of claims filed by pro …

A Correct Analysis Of The Tax Treatment Of Contingent Attorney's Fee Arrangements: Enough With The Fruits And The Trees, Gregg Polsky

Faculty Articles

The tax treatment of contingent attorney's fee arrangements has been the subject of much recent debate and litigation. Some courts and commentators conclude that a plaintiff must include the entire settlement amount, including attorney's fees, in her gross income, while other courts and commentators conclude that a plaintiff must include only her recovery net of attorney's fees. Because of the alternative minimum tax, the resolution of this issue may have a significant effect on the plaintiff's tax liability. In analyzing the issue, courts and commentators have focused on the assignment of income doctrine by inquiring whether, upon execution of a …

Speak No Evil: Settlement Agreements Conditioned On Noncooperation Are Illegal And Unethical, Stephen Gillers

Faculty Articles

Concludes that contractually binding noncooperation agreements, when made for the purpose of denying others information that could support civil or criminal liability, obstruct justice under federal law. Commonness of asking for and making noncooperation promises; Professional obligation of lawyers to assess the risk of illegality when recommending actions to their clients.

Erisa: The Savings Clause, § 502 Implied Preemption, Complete Preemption, And State Law Remedies, Donald T. Bogan

Faculty Articles

No abstract provided.

Consent, Not Power, As The Basis Of Jurisdiction, Richard A. Epstein

Faculty Articles

Properly understood and applied, the idea of consent does not supply a panacea for the law of jurisdiction any more than it does in the law of contracts. All concepts are blurry at the edges, and it seems instructive that the inevitable ambiguities in the law of jurisdiction become most acute just where the traditional notions of consent start to give way-that is, as we move from consensual arrangements to disputes between strangers, especially with international transactions. But difficulties at the margins are not the same as decisive objections to the whole project, unless and until the critic can come …