Digital Commons Network^™

The Unintended Cultural Consequences Of Public Policy: A Comment On The Symposium, Richard H. Pildes

Faculty Articles

Implicit in New Public Law scholarship is a struggle to find ways to incorporate the most provocative insights it has spawned. Most arresting among these is the understanding that private preferences and public values are not static, but rather partially forged by the ongoing content and experience of public policy itself. Under this view preferences can be "adaptive," or "endogenous," or in the catch phrase of the New Left, politics is transformative: of values, experiences, understandings, and norms. New Public Law scholars have posed profound theoretical challenges to the traditional pluralist and modem Paretian-welfarist view that an ideal public policy …

On Shared Human Capital, Promotion Tournaments, And Exponential Law Firm Growth (Book Review), Vincent R. Johnson

Faculty Articles

Tournament of Lawyers: The Transformation of the Big Law Firm is part of the scholarly literature that seeks to understand the ongoing metamorphosis of the American legal profession. Authors Marc Galanter and Thomas Palay’s basic argument is that traditional law firm promotion practices make growth in firm size inevitable and such growth is linked to many recent developments. These developments include increased lateral hiring, the creation of tiered partnerships, and the collapse of entire firms. The exponential character of law firm growth means that inevitable structural modifications will be greater than in years past. At the same time, greater dissemination …

Community Institution Building: A Response To The Limits Of Litigation In Addressing The Problem Of Homelessness, Ronald Slye

Faculty Articles

This article draws upon the experiences of the Jerome N. Frank Legal Services Organization at Yale Law School to argue that, while litigation has a place in addressing both the problem of homelessness and the problems of the homeless, it must be placed within a broader context and supplemented by other, non-litigious, legal activity. Using as an example a lawsuit brought on behalf of homeless families in Connecticut, this article makes four observations which support the conclusion that litigation, used alone, is an ineffective means of addressing the problem of homelessness.

Revitalizing Public Interest Lawyering In The 1990'S: The Story Of One Effort To Address The Problem Of Homelessness, Ronald Slye, Rebecca Arbogast, Roger L. Barnett, Leslie Kim Treiger

Faculty Articles

Despite annual exhortations to graduating law students to accept the responsibilities as well as the benefits of entering the legal profession, the prognosis for public interest law in the 1990's is uncertain. There have been significant decreases in federal and private funding of public interest organizations, sweeping changes in the composition of the federal judiciary, and a decline in the matriculation of public interest lawyers due to the increasing salary gap between the private and public sector. Together these factors raise serious questions about the future effectiveness of the traditional model of the full-time public interest litigator and call for …

The Crime Of Barratry: Criminal Responsibility For A Branch Of Professional Responsibility, Gerald S. Reamey

Faculty Articles

When lawyers thought of spurious litigation or solicitation of clients, they thought only of disciplinary rules and possible sanctions by a grievance committee. Such misconduct is not, however, merely a breach of professional etiquette or a violation of disciplinary rules. It is also a crime. Barratry, unlike most forms of professional misconduct, is criminal. The sanctions are more serious and the procedures are often less familiar than for other ethical lapses. Personal solicitation of prospective clients is the evil targeted by the barratry statute.

In Bates v. State Bar of Arizona, the Supreme Court first recognized lawyer advertising as commercial …

Just A Bigger Fish (Book Review), Michael S. Ariens

Faculty Articles

Shark Tank: Greed, Politics, and the Collapse of Finley, Kumble, One of America’s Largest Law Firms is a non-fiction potboiler written by Kim Isaac Eisler. The story is generally about the decline and fall of an institution instrumental to capitalism that prospered during much of the 1980s. In particular, it is about the decline and fall of men whose hubris and greed make the decline and fall so satisfying to read.

While it would be easy to dismiss the demise of Finley, Kumble, because it was not an old, established “white shoe” law firm, or to analogize it to the …

On The Transformation Of The Legal Profession: The Advent Of Temporary Lawyering, Vincent R. Johnson, Virginia Coyle

Faculty Articles

The structure of the legal profession and the nature of law practice have changed dramatically during the past quarter of a century. Indeed, the transformation has been so thorough that it is difficult to say with confidence which of the many developments has had the greatest impact on the culture of law practice. The growth in the number of attorneys and law firms has been exponential; women and minorities comprise increasingly larger percentages of law school graduates, practitioners, and the academic bar; law firms are taking on greater and greater numbers of associates; starting salaries in major firms now approach …

Proceedings Of The First Center For Law And Military Operations Symposium, 18-20 April 1990, Jeffrey F. Addicott

Faculty Articles

The First Center for Law and Military Operations Symposium was held from 18 to 20 April 1990. It was conducted by the Center for Law and Military Operations of The Judge Advocate General’s School of the United States Army. Sixty participants, representing the Army, Navy, Marine Corps, Air Force, Coast Guard, Department of Defense (DOD), and Department of State attended the symposium.

The symposium covered number of topics including operational law (OPLAW), legal considerations regarding psychological operations (PSYOP), Operation Just Cause, military changes taking place in Europe, the DOD Counternarcotics Mission, and the negotiation and conclusion of international agreements. The …

Specialized Courts And The Administrative Lawmaking System, Richard L. Revesz

Faculty Articles

The central purpose of this Article is to analyze the desirability of vesting the review of administrative action in specialized courts, and to assess the relative merits of different types of specialized courts. Part I presents the central arguments raised in favor of specialized courts. Part II discusses the varieties of specialized courts (courts currently in place, courts that once existed and were subsequently abolished, and various proposals), and sets forth a method by which to categorize such courts. In general, the academic literature has not paid proper attention to the different structures of specialized courts. As a result of …

Liberating Progress And The Free Market From The Specter Of Tort Liability (Book Review), Vincent R. Johnson

Faculty Articles

That all is not well with tort law cannot seriously be doubted. In Liability: The Legal Revolution and Its Consequences, Peter Huber attempts to chronicle the changes in tort doctrine over the past thirty or so years that have brought tort law to its present crisis, and to prescribe sweeping remedial actions capable of defining a more intelligent course of accident compensation. Drastic measures are necessary, Huber argues, because of the magnitude of the emergency.

Huber’s critique of modern tort law is always provocative and often perceptive and enlightening. The book identifies many jurisprudential trouble-spots which cry out for reform, …

Law-Givers, Story-Tellers, And Dubin’S Legal Heroes: The Emerging Dichotomy In Legal Ethics (Video Review), Vincent R. Johnson

Faculty Articles

Two camps have begun to emerge from the rich ferment in legal ethics teaching and scholarship over the last twenty years. The first group, whose members might be termed “law-givers,” consists of those who view legal ethics as chiefly concerned with the identification, transmission, and enforcement of uniform standards governing the conduct of lawyers. The second group—considerably smaller, but increasingly well-defined—might be called the “story-tellers.” The story-tellers place a higher value on persons and context than on principles and procedures, and on the cultivation of a deeper, less mechanical sense of professionalism than detailed rules can provide.

Larry Dubin’s most …

Being A Woman, Being A Lawyer And Being A Human Being–Women And Change, Eleanor M. Fox

Faculty Articles

This is an essay on hierarchy, humanism and change. It is inspired by the insightful essay of Judge Judith S. Kaye, Women Lawyers in Big Firms: A Study in Progress Toward Gender Equality. Women, people of color and others historically denied a place on the upward track of the traditional hierarchies in the practice of law, have today, more than ever before, the chance to succeed on merit. Moreover, we have a unique opportunity to rehumanize an increasingly specialized, technocratic, compartmentalized and sometimes unresponsive profession. But we also face the dual pitfalls of being swept up the ladder as yet …

The Efficiency Of A Disgorgement As A Remedy For Breach Of Contract, Sidney Delong

Faculty Articles

Economic analysis suggests that to give a contract promise a general remedy that would require a breaching promisor to disgorge any benefit of breach would hinder the efficient post-contractual reallocation of performance resources. This article explores certain situations in which disgorgement appears to be an efficient remedy for breach of contract, including cases in which the breaching party refuses to pay contract damages at the time of breach. A rule permitting promisees to recover as "prejudgment interest" the breacher's benefit from withholding payment of damages would, in theory, be efficient in allocating the risk of the breacher's credit worthiness to …

Solicitation Of Law Firm Clients By Departing Partners And Associates: Tort, Fiduciary, And Disciplinary Liability, Vincent R. Johnson

Faculty Articles

May a departing attorney, with or without firm consent, contact clients of the firm, in person or in writing, for the purpose of soliciting their present and future legal business? This is the question being asked because in recent years there has been a marked increase in the number of attorneys switching firms, many of whom seek to take with them the business of their former firm’s clientele. While the contours of permissible departure-based solicitation were once clearly and narrowly circumscribed by the rules of legal ethics, the continued validity of those restrictions is seriously placed in doubt by the …

The Future Of Liberal Legal Scholarship, David Skover, Ronald Collins

Faculty Articles

Earl Warren is dead. A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed. The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." The author’s present their views as a commentary to emphasize their preliminary character; they represent thier current assessment of where liberals stand and where they might redirect their energies. In Part I, they outline the reasons for believing that there …

Audiovisual Enhancement Of Classroom Teaching: A Primer For Law Professors, Vincent R. Johnson

Faculty Articles

It is increasingly hard to avoid the idea that audiovisual techniques are appropriate—if not essential—to the contemporary law school classroom. Audiovisual aids are already widely employed in the practice of law, continuing legal education, and in most fields of higher and professional education. Yet, what little empirical evidence exists suggests that modern media techniques have had little impact on the traditional law school classroom. Thus it is relevant to ask whether and how audiovisual media can effectively augment the teaching of standard substantive law courses.

Wilder V. Bernstein: Squeeze Play By Consent Decree, Richard A. Epstein

Faculty Articles

The distinction between binding strangers and compromising their interest by consent decree is critical for understanding the protracted litigation in Wilder v. Bernstein. The consent decree entered by the American Civil Liberties Union ("ACLU") and the City of New York in Wilder v. Bernstein, represents a case where the parties to the consent decree labored with considerable success to impose substantial costs upon third parties, here chiefly Catholic and Jewish charities with whom the City had long done business. It is therefore useful to discuss the case briefly to give some sense of the dangers (some might say possibilities) that …

A Uniform Rule Governing The Admission And Practice Of Attorneys Before United States District Courts, Michael S. Ariens

Faculty Articles

The increase in the interstate and international practice of law necessitates a review of the rules governing the admission of attorneys to practice before federal district courts. By virtue of the sweep of their jurisdictional net, federal district courts are likely to be the fora for litigating most interstate or international disputes. The present rules, based upon the antiquated notion that lawyers only rarely practice law in federal district court, and then only in the federal district court located in the state in which they practice, do not address this change in the practice of law.

For these reasons, a …

What We Talked About When We Talked About Ethics: A Critical View Of The Model Rules, Stephen Gillers

Faculty Articles

The bar has drafted a code that proves the wisdom of its own precept against client-lawyer conflicts. The lawyers who approved the Rules looked after their own. They have given us an astonishingly parochial, self-aggrandizing document, which favors lawyers over clients, other persons, and the administration of justice in almost every line, paragraph, and provision that permits significant choice. It is internally inconsistent to the bar's benefit. It continues the practice of using the language of ethics to mask controls on the availability of legal services that in turn artificially inflate the cost of the services. True, the Rules read …

Yellow Pages Legal Ads In Texas: The Complexities Of Dr 2-101(B) & (C), Vincent R. Johnson

Faculty Articles

A Texas lawyer desiring to place an advertisement in the Yellow Pages to offer legal services faces significant obstacles. Not only must he ensure that the ad conveys the correct image of the firm, but he must also comply with a number of specific requirements imposed by the Texas Code of Professional Responsibility. Two of the more dogging Code provisions are subsections (B) and (C) of Disciplinary Rule (DR) 2-101.

Between the requirements of these two subsections, the likely result is that the Yellow Pages ad will be a tangle of disclaimers, provisos, and footnotes if the project is to …

Legal Remedial Alternatives For Spouse Abuse In Texas, Gerald S. Reamey

Faculty Articles

There are numerous civil and criminal legal alternatives available in Texas for dealing with abuse between adult cohabitants. Current and proposed systems may protect victims more effectively and deter abusers, and empirical studies can reveal the direction legal systems should take to pinpoint the flaws and shortcomings in present legal responses to abuse.

The difficulty of assessing the extent of spousal abuse increases the difficulty of finding an effective legal remedy. Abuse, like rape, is far less likely to be reported than other crimes. In addition, spousal abuse is hard to define in any meaningful statistical manner because of the …

Goals In Life Worth Pursuing, Harry T. Edwards

Faculty Articles

This publication is the reprint of a speech delivered by Judge Edwards at the Tenth Anniversary Banquet of the Florida State University Law Review, held in Tallahassee, Florida on November 12, 1982.

The Impact Of Reagan-Era Politics On The Federal Medicaid Program, Ken Wing

Faculty Articles

The political future may be difficult to predict with specificity, but surely the level of publicly-sponsored medical care for the poor will be severely reduced in the coming years, leaving millions of poor Americans to rely on the charitable capacity of the nation's health care providers-or simply to go without. What follows is an attempt to support this characterization of Medicaid and its political future. Section I of this article is a description of Medicaid, its structure prior to 1981, and the legal and political history of its development and implementation. In addition to providing the basis for understanding the …

A Comparative Study Of British Barristers And American Legal Practice And Education, Marilyn Berger

Faculty Articles

The conduct of a trial in England is undeniably an impressive undertaking. Costume alone transports the viewer to Elizabethan times. Counsel and judges, bewigged and gowned, appear in a cloistered, regal setting, strewn with leather-bound books. Brightly colored ribbons of red, green, yellow and white, rather than metal clips and staples fasten the legal papers. After comparison with the volatile atmosphere and often unruly conduct of a trial in a United States courtroom it is natural to assume that the British model of courtroom advocacy provides an instructive model for its American counterpart.

The Writ Of Prohibition In Arkansas, William Murray Tabb

Faculty Articles

No abstract provided.

Bodily Evidence And Rule 312, M.R.E., David A. Schlueter

Faculty Articles

n addressing the issues of obtaining bodily evidence, such as bodily fluids, from a suspect, Rule 312 of the Military Rules of Evidence must be considered in conjunction with the issues of self-incrimination, due process, and the Fourth Amendment. The Rule describes the procedures for collection of bodily evidence of service members. For example, a service member may not invoke the right against self-incrimination for external bodily evidence, but may when bodily fluids or cavity searches are requested. Any nonconsensual search may be conducted if it is both reasonable and performed under one of the authorized procedures of Rule 312. …

Unequal Justice: Lawyers And Social Change In Modern America, By Jerold S. Auerbach (Book Review), David A. Dittfurth

Faculty Articles

In Unequal Justice, Jerold S. Auerbach attempts to prove that the legal profession has failed to adequately pursue equality of justice. He finds little evidence that the legal profession or its dominant factions have made an adequate effort to assure the provision of legal services according to need. On the contrary, most of the historical evidence presented in this book leads one to believe that the legal profession has accepted profit as its real goal.

The author contends that, because the legal profession is responsible for formulating and applying law in a very legalistic society, it serves a very important …

Constructive Enlistments: Alive And Well, David A. Schlueter

Faculty Articles

Despite the predicted demise of the doctrine of constructive enlistments, recent case law from the Courts of Military Appeals has extended its existence. The constructive enlistment is recognized as a means of changing one’s status from civilian to servicemember where some deficiencies exist in the formal enlistment process.

In a trio of cases, United States v. Brown, United States v. Catlow, and United States v. Russo, the Court of Military Appeals laid a firm foundation for estopping the government from relying upon constructive enlistments in order to establish in personam court-martial jurisdiction. This trio of cases raised more questions than …

National Health Planning And Resources Development Act Of 1974: Implications For The Poor, Ken Wing, A. G. Schneider

Faculty Articles

The National Health Planning and Resources Development Act of 1974, was signed into law on January 4, 1975, following a lengthy legislative struggle. During the past 11 months, the fighting among private and public health interests has continued, although the principal arena has shifted from the Congress to the Department of Health, Education and Welfare, which is charged with primary responsibility for implementing the law. While the final outcome of this political conflict is still difficult to foresee, some informed estimates can already be made concerning the implications of this legislation for the poor. This article will not summarize the …

Representation Of Clients In Matters Relating To Hospital Bills, Ken Wing, S. Axelrad, P. A. Butler

Faculty Articles

This article is designed to acquaint Legal Services attorneys with a range of government health programs for which their clients may be eligible, and a number of legal theories that may impose a duty to provide care on public or private medical care institutions. The primary objective is to provide background material to assist the attorney in getting medical bills paid or defending a collection action. The article also includes a discussion of legal duties to provide care that will be useful in advising clients and consumer groups of their rights and of the programs and services that should be …