Digital Commons Network^™

Choice And Federal Intervention In Corporate Law, Stephen J. Choi, Andrew T. Guzman

Faculty Articles

In a recent and provocative essay, Lucian Bebchuk and Allen Ferrell put forward a proposal for takeover-related corporate law that they contend 'dominates' the present system of state competition. They advocate in favor of a new federal takeover regime combined with a mandatory choice rule through which shareholders may force a corporation to opt into the new federal regime. We applaud Bebchuk and Ferrell's proposal in so far it expands the amount of choice available to corporations and thereby increases competition within the market for takeover-related legal rules. While some choice makes the present system better, we argue that greater …

Sentencing Reform In The Other Washington, David Boerner, Roxanne Lieb

Faculty Articles

Washington State's sentencing reform in the early 1980s encompassed all felonies, including those resulting in sentences to prison and jail; the state also enacted the first and only sentencing guidelines for juvenile offenders. Several lessons are suggested from Washington's experience: sentencing guidelines can change sentencing patterns and can reduce disparities among offenders who are sentenced for similar crimes and have similar criminal histories; a sentencing commission does not operate as an independent political force, except when such delegation serves the legislature's purpose; guidelines are policy-neutral technologies that can be harnessed to achieve the legislature's will; in states where citizen initiatives …

Protecting Patient Rights Despite Erisa: Will The Supreme Court Allow States To Regulate Managed Care?, Donald T. Bogan

Faculty Articles

No abstract provided.

The Virtues And Limits Of Codes In Legal Ethics, Vincent R. Johnson

Faculty Articles

In the absence of codified standards of ethics, the ethical quality of law practice would degenerate into inconsistency and unpredictability. The presence of an ethics code can unduly burden and limit the practice of law. However, ethics codes should not be thought of as tools to ensure the law is practiced humanely. Instead, they should be viewed as attempts to ameliorate the impediments to a humane practice and to call lawyers to that goal.

Tom Schaffer, a scholar and professor of Ethics at Notre Dame, lamented the fact that the codification of standards of attorney conduct could induce lawyers to …

Introduction: Performing Latcrit, Robert S. Chang, Natasha Fuller

Faculty Articles

This introduction examines the four articles in this cluster on LatCrit praxis. The four articles can be seen as case studies that explore different aspects of LatCrit praxis. Pedro Malavet examines the role literature and the arts can play as a form of antisubordinationist practice. Nicholas Gunia focuses on Jamaican music as a particular site of antisubordinationist practice, showing us that resistance comes in many forms and that LatCrit practitioners must have a broad theory for social change that is not limited to legislatures, courtrooms, classrooms, and law reviews. Alfredo Mirande Gonzalez employs personal narrative to tell us how he …

Confronting The Limits Of Gay Hate Crimes Activism: A Radical Critique, Dean Spade, Craig Willse

Faculty Articles

Questioning the emancipatory potential of hate crimes activism for sexual and gender non-normative people, this paper outlines the limits of criminal justice remedies to problems of gender, race, economic and sexual subordination. The first section considers some of the positive impacts of hate crimes activism, focusing on the benefits of legal "naming" for disenfranchised constituencies seeking political recognition. In the next section the authors outline the political shortcomings and troubling consequences of hate crimes activism. First, they examine how hate crimes activism is situated within a "mainstream gay agenda," a term they use to designate the set of projects prioritized …

The Daishonin’S Path: Applying Nichiren’S Buddhist Principles To American Legal Education, John W. Teeter Jr

Faculty Articles

The fundamental aspects of Nichiren Daishonin's teachings merit modern attention. The Daishonin was a tireless mentor for his disciples, and his call for compassion, critique, courage, and wisdom are essential for law students and teachers alike. A remarkable man, the Daishonin's perceptions ought to inform the way professors teach and advise their students, and encourage others to reflect on their own sources of spiritual sustenance and examine the contributions they can make toward deepening the relevance, meaning, and joy of legal education.

The Daishonin emphasized the primacy of The Lotus Sutra, which declares that all living beings inherently possess the …

Collaboration Between Lawyers And Social Workers: Re-Examining The Nature And Potential Of The Relationship, Paula Galowitz

Faculty Articles

The impetus for this Article was a case handled this past year by the Civil Legal Services Clinic which I teach at New York University Law School. In the clinic, third-year students represent clients in a variety of cases, including housing, government benefits, immigration, guardianship planning for clients who are HIV positive, and education. The students, who work in pairs, select from the clinic's docket the kinds of cases on which they want to work. The two students in this particular case chose to work on a case for a client who was HIV positive. The clinic's experience in that …

Professional Legal Organizations On The Internet: Websites And Ethics, Drew L. Kershen

Faculty Articles

No abstract provided.

The Effect Of Welfare Reform On Immigrant Children, Gillian Dutton

Faculty Articles

Welfare reform's changes in immigration laws-aimed at working-age adults-may have a lasting effect on immigrant children in the United States. By familiarizing themselves with the most common barriers to assistance and ways to overcome them, advocates can help immigrant children access the benefits they need to lead better lives.

The Ethics Of Communicating With Putative Class Members, Vincent R. Johnson

Faculty Articles

The ethical prohibition against contact with represented persons is an exacting rule. It carries with it the threat of serious consequences, including, but not limited to, attorney discipline, disqualification of counsel, and inadmissibility of evidence obtained in violation of its terms. However, there are still important unresolved questions relating to the interpretation of the rule, including its proper operation in class action litigation.

Following analysis, the various rationales offered in support of the rule fail to justify an application of the contact ban to communications with unnamed putative class members during the pre-certification period of class action litigation. Absent a …

Employment Law: Courts And Contracts, Richard A. Epstein

Faculty Articles

There are clearly deep divisions of opinion in New Zealand on the relationship between the courts and the Employment Contracts Act 1991 (ECA). These address both substantive and jurisdictional issues. Thus, the central dispute concerns the way courts should interpret the various provisions of the Act. The second concerns the question of whether a specialized court should have primary responsibility over administering and interpreting the Act. Clearly, the two questions are related, for the choice of tribunal is likely to have some systematic effects on the manner of interpretation. But as a foreigner, I plan to avoid these specific controversies …

Fostering Diversity In The Legal Profession: A Model For Preparing Minority And Other Non-Traditional Students For Law School, Lorraine K. Bannai, Marie Eaton

Faculty Articles

Undergraduate institutions, on their own and in partnership with law schools, can and should play a more significant role in expanding the pool of law school applicants from non-traditional backgrounds. The Law and Diversity Program at Western Washington University was conceived out of this desire to prepare non-traditional students for the study of law and thereby help bring more diversity to the legal profession. This article discusses the model used by the Law and Diversity Program to prepare non-traditional students for law school and the program's success in accomplishing its goals. It was the hope of the author to create …

An Attorney's Right To Retain Fees Derived From A Fraudulent Law Suit, Leonard Pertnoy

Faculty Articles

The remedy of restitution, used to prevent unjust enrichment, is a fundamental right firmly entrenched in the common law. This is especially true in cases where a victim seeks equitable relief to require the return of money or property obtained as a result of fraud. However, should the defrauded person always be entitled to be made whole? Similarly, the remedy of forfeiture is also a deeply rooted legal concept, finding its beginnings in early English common law. Originally, forfeiture was a punishment annexed by law to some illegal act. However, the concept of deodand now not only includes forfeiture of …

A Paradigm For Determining The Role Of Counsel For Children, Martin Guggenheim

Faculty Articles

The thesis of this Article is that we have skipped an important step, in that there is much work that still needs to be done to resolve the proper mode of analysis. This Article explores the relevant considerations and offers an analytic framework or paradigm for determining the role of counsel for "young children.", For these purposes, the term "young children" will be defined to mean children so young that they cannot articulate their preferences to counsel (e.g., newborns to children ages two or three) and children who, though old enough to communicate, would be considered to be "impaired," within …

The Year: 2075, The Product: Law, Stephen Gillers

Faculty Articles

This is an expanded version of remarks delivered by Professor Stephen Gillers, New York University School of Law, at Hofstra University Law School legal ethics conference, March 12, 1996.

Immigration Law: The Immigration Consequences Of Criminal Activity, Genevieve Hebert Fajardo, Lorelei Ritchie

Faculty Articles

Immigration laws in the United States may affect prisoners, possibly resulting in deportation. Some convicted prisoners who are aliens may be subject to deportation dependent upon the government’s ability to prove by clear, unequivocal, and convincing evidence that they fall into a deportable category. Providing prisoners with sufficient knowledge and answers to potential deportation questions stemming from criminal convictions may delay and thwart these proceedings.

By beginning with a categorization of the different types of immigrants in this country, a convicted prisoner will be better able to determine for themselves whether they are subject to deportation. If they are, this …

Legal Training Handbook For The Ukrainian Military, Jeffrey F. Addicott

Faculty Articles

In May of 1995, a democracy building project between The Judge Advocate General of Ukraine and United States Army lawyers was completed in Kiev. Over the course of this eight-month project, from September 1994 to May 1995, United States Army judge advocates from the International and Operational Law Division, Office of The Judge Advocate General, worked directly with Colonel Alexander Bokov, Chief, Legal Service of the Ministry of Defense of Ukraine, in developing a legal training handbook for Ukrainian soldiers.

The handbook, entitled “Code of Conduct for Participants in Military Operations,” now serves as the primary training guide for instructing …

And Then Suddenly Seattle University Was On Its Way To A Parallel, Integrative Curriculum, John B. Mitchell, B. Hollingsworth, P. Clark, R. Lidman

Faculty Articles

This is a story of change so sudden that it surprised even those who most fervently sought it. For nearly a decade, Seattle University School of Law has offered an extensive typical skills curriculum. All students are involved in an intensive two year writing program. The simulated Comprehensive Pretrial and Trial Advocacy Program trains over 150 students a year, while in the Law Practice Clinic, 60 students a year represent domestic and criminal clients. Course offerings that fill out the lawyering skills supports are offerings such as ADR, Negotiations, and Appellate Advocacy, along with judicial and public service externships and …

Some Tips On Using Collaborative Exercises, Paula Lustbader

Faculty Articles

This article outlines the teaching method of collaborative learning, which is apparently effective but difficult to properly administer. It provides teachers with a variety of ways to effectively employ this method.

Know The Law: A History Of Legal Specialization, Michael S. Ariens

Faculty Articles

Legal specialization is an unexceptional aspect of the profession of law because specialization and concentration are expected of lawyers. There has been a transformation in lawyers’ understanding of the reasons justifying their position in society and, therefore, a transformation in their understanding of what it means to be a “professional.” The ideological reasons for this transformation include: (1) the influence of the ABA in promulgating and proselytizing specialization standards; (2) a continuing insistence by the legal profession of the importance of the idea of a unified bar; (3) the large increase in size and influence of the legal academy, consisting …

Gays And Lesbians In The Military: A Rationally Based Solution To A Legal Rubik’S Cube, David A. Schlueter

Faculty Articles

This article addresses legislation which was an attempt to accommodate homosexuals serving in the military. The author concludes that Congress had a rational basis for adopting a policy of limited accommodation. The issue of homosexuals in the armed forces presented Congress with a significant challenge to the exercise of its constitutionally-based powers to regulate the military. Prior to the enactment of the “don’t ask, don’t tell” policy, homosexuals were banned from service in the United States military. Congress had the option to continue the ban on homosexuals in the military, become fully accommodating by allowing them to serve openly, or …

Policy Guidance For The Transfer Of Dod Installations To The Government Of Panama, Jeffrey F. Addicott

Faculty Articles

Under the provisions of the 1977 Panama Canal Treaty, all United States military forces will be withdrawn from the Government of Panama (GOP). Additionally, by December 31, 1999, all United States military installations and other facilities will be turned over to the GOP.

To better accomplish the transfer of Department of Defense’s (DOD) installations to the GOP, the Panama Canal Treaty Implementation Plan Agency (TIPA) released a comprehensive policy guidance document (PGD) entitled “Policy Guidance for the Transfer of DOD Installations to the Government of Panama.” Army lawyers have been instrumental in helping draft this document, and the four major …

Redefining The Sixth Amendment, John B. Mitchell

Faculty Articles

This article compares public defenders in lower courts with public defenders in superior courts across the country. The article concludes that lower criminal courts suffer from problems of funding and resource allocation and that these issues must be addressed before they can adequately administer justice.

Oregon Consumer Protection: Outfitting Private Attorneys General For The Lean Years Ahead, Steven W. Bender

Faculty Articles

This article examines Oregon's UTPA with an eye toward legislative and judicial reforms that will strengthen its private cause of action and thereby facilitate private enforcement. First, the scope of the UTPA is examined. Next, private remedies authorized by the UTPA are critiqued. Finally, the role of the DOJ is reformulated in response to declining public resources and increased reliance on private enforcement.

Reading Between The Lines: Indigent Defense Issues And The Restatement Of The Law Governing Lawyers, Kim A. Taylor-Thompson

Faculty Articles

In the development and analysis of rules of professional responsibility, it has long been recognized that criminal defense is, simply stated, different. Many ethical codes acknowledge this distinction but rarely explain the difference sufficiently to provide practical guidance. And, frankly, if criminal defense is characterized as "different," then indigent defense should probably be described as "peculiar." When the attorney-client relationship is formed not by client choice, but by judicial appointment, dilemmas arise beyond those traditionally recognized in ethics codes. Moreover, prevailing indigent defense delivery systems are not uniform and generate unique ethical issues. To its credit, the Restatement of the …

Twenty-Five Years Later-For Better Or Worse, Faye M. Bracey

Faculty Articles

State bar associations, which once operated in a small guild atmosphere, have become full-fledged administrative bodies. When bar associations came into existence in the late nineteenth century, they concentrated on setting admission requirements. Today, every state has admission requirements involving age, educational requirements, and skills examinations. In contrast to their earlier period, bar associations today concentrate more on providing social programs, educating members, and regulating the profession. This essay will discuss other fundamental changes in the legal profession that occurred from 1968-1993.

The Lord In The Law: Reflections On A Catholic Law School, Aloysius A. Leopold

Faculty Articles

The symbiosis between law and morality has played a major role in universities since their formation and is critical to our moral and legal future. Each is dependent on the other, and an attempt to separate the two will seal the fate of our society as a whole. The Catholic law school must ensure that this symbiosis is never broken, but is fulfilled by incorporating relevant new courses and by teaching present classes in light of the Catholic message. Further, Catholic defense clinics should be offered to enrich the lives of others, and priests and nuns should be made available …

Rethinking Indigent Defense: Promoting Effective Representation Through Consumer Sovereignty And Freedom Of Choice For All Criminal Defendants, Stephen J. Schulhofer, David D. Friedman

Faculty Articles

Part I of the Article analyzes the structure of the attorney-client relationship and identifies the problems that contractual or institutional arrangements must seek to minimize. Part I describes existing methods for the delivery of indigent defense services and assesses their ability to address these problems. Part III develops alternatives to existing arrangements. We consider three groups of approaches: insurance models, deregulation models and voucher models. We conclude that insurance models, though theoretically revealing, are impractical. Deregulation models offer an immediate, easily implemented but partial solution. The more ambitious voucher models, adapted to local conditions in various jurisdictions, provide a practical …

Modern Legal Times: Making A Professional Legal Culture, Michael S. Ariens

Faculty Articles

Lawyers’ belief in their professionalism was fostered by the creation and development of modern legal institutions. Law schools, bar associations, organizations like the American Law Institute, as well as the system of legal directories, the regional case reporter system, and continuing legal education groups all contributed greatly to the making of a distinctly professional culture of law in America. These institutions prospered in part because of their ideological fit with the professionalizing ethos embodied in Christopher Columbus Langdell’s statement that “law is a science.”

Legal institutions, then, must be evaluated through the ideological lens which encouraged and fostered the notion …