Digital Commons Network^™

The Uniform Collaborative Law Act's Contribution To Informed Client Decision Making In Choosing A Dispute Resolution Process, John M. Lande, Forrest Steven Mosten

Faculty Publications

This Article describes how lawyers can implement the requirements of the Uniform Collaborative Law Act to obtain clients’ informed consent. The Act requires lawyers to obtain clients’ informed consent before undertaking a Collaborative representation but does not specify the information that lawyers must discuss with prospective Collaborative parties. To flesh out the Act’s requirements, this Article describes how lawyers should analyze the facts and parties’ interests, screen the appropriateness of dispute resolution processes, analyze the reasonably available dispute resolution options, and discuss the Collaborative process with clients. It specifically addresses privacy issues including privilege, confidentiality, and full disclosure requirements. This …

Educating Problem Solving Lawyers For Our Profession And Communities, Lisa A. Kloppenberg

Faculty Publications

No abstract provided.

Book Review: Protection Of Foreign Investment In Context: Nigeria's Investment Laws, Treaties, And Petroleum Agreements, Duncan E. Alford

Faculty Publications

No abstract provided.

Pregnancy Discrimination And Social Change: Evolving Consciousness About A Worker's Right To Job-Protected, Paid Leave, Patricia Shiu, Stephanie Wildman

Faculty Publications

This Article examines the change over the past few decades in U.S. law and societal attitudes concerning a worker's right to job-protected, paid leave. Though common around the world, job-protected, paid leave eludes the U.S. workforce. The authors begin by considering the concept of work, its relation to identity, and the construction of safety nets for workers when they need income replacement. The Article considers the movement to establish job-protected, paid leave that encompasses and values a worker's work, family, and personal life.

The modern movement originated with pregnant workers' need for time away from work during pregnancy. Women who …

Pro Bono: Assessing Aims And Achievement, Lisa A. Kloppenberg, Lori E. Shaw

Faculty Publications

No abstract provided.

New Sources Of Managerial Authority In Large Law Firms, Elizabeth Chambliss

Faculty Publications

The academic literature on large law firms emphasizes the limited authority of professional managers and the ability of rainmaking partners to sidestep formal management controls. Research suggests that bureaucratic management structures, such as dedicated, professional managers, tend to be weak or unstable in law firms, where compensation and status are tied to control over clients. Thus, while many commentators point to the potential competitive benefits of professional management - or, what typically is referred to as the "corporate" model - most analysts are skeptical that U.S. law firms will embrace such a model any time soon.

This Article stakes out …

Business Lawyers As Enterprise Architects, George W. Dent

Faculty Publications

In 1984 Ronald Gilson published Value Creation by Business Lawyers: Legal Skills and Asset Pricing. It began: "What do business lawyers really do? Embarrassingly enough, at a time when lawyers are criticized with increasing frequency as nonproductive actors in the economy, there seems to be no coherent answer." He dismissed lawyers' own answer that "they 'protect' their clients, that they get their clients the 'best' deal." He also rejected the academic literature which offered a laundry list of roles the business lawyer plays: "a counselor, planner, drafter, negotiator, investigator, lobbyist, scapegoat, champion, and, most strikingly, even as a friend." Dissecting …

Autism Fast Start Checklist, Tina Taylor, Leeann Whiffen

Faculty Publications

This Fast Start Checklist was created to help parents in Utah who are concerned that their child is exhibiting signs of an Autism Spectrum Disorder (ASD). It serves as a general guideline for obtaining support through the evaluation and initial treatment process and is not intended to be all-inclusive. Early Intervention and school personnel can guide parents to these resources as they collaborate to determine the best route for serving children who exhibit signs of ASD. Parents should be encouraged to not try to do everything on this list, as they are provided as points to consider. This checklist is …

The Changing Role Of Physicians In Disaster Management And Hospital Incident Command, F. Matthew Mihelic, M. David Stockton, Stephen A. Cole, Gregory H. Blake

Faculty Publications

Recent changes in governmental policy toward disaster medicine and hospital incident command foreshadow a significant change in the role that physicians will play in disaster preparedness and response. The distinct discipline of Disaster Medicine has received authoritative recognition and promotion in the recent Homeland Security Presidential Directive 21, and recently established guidelines for incident command within hospitals have included a new position designated as “Medical/Technical Specialist(s)” that will assist the Incident Commander in disaster-related decision-making. This is a multidisciplinary position, and its functions can be filled by one or more individuals. As physician training and competency in Disaster Medicine increases, …

Freeriders And Diversity In The Legal Academy: A New Dirty Dozen List, Ediberto Román, Christopher B. Carbot

Faculty Publications

Latina and Latino student enrollment in U.S. law schools the last few decades has increased. This increase, however, has not resulted in a comparable increase in Latino and Latina law professors. To foster diversity in law school faculties and to increase Latina representation, the “Dirty Dozen List” was published. The List was comprised of the top twelve U.S. law schools located in high Latina populated areas but lacking a single Latina professor on the faculty. The List served to increase awareness of the lack of diversity at some of the nation’s top legal institutions, as well as “shame” these schools …

May A Prevailing Party Be Awarded “Attorney Fees” For Paralegal Services?, Jay E. Grenig

Faculty Publications

No abstract provided.

Plain-English Drafting For The 'Age Of Statutes', Douglas E. Abrams

Faculty Publications

No abstract provided.

Ordeal By Innocence: Why There Should Be A Wrongful Incarceration/Execution Exception To Attorney-Client Confidentiality, Colin Miller

Faculty Publications

No abstract provided.

East Asia Institutionalizes: China, Japan And The Vogue For Free Trade, Timothy Webster

Faculty Publications

In the past decade, East Asia has taken steps to increase regional integration. This paper examines the vogue for Free Trade Agreements (FTAs) currently raging in China and Japan. After mapping the regional links that knit East Asia together during the 1990s and 2000s, the focus then shifts to the specific trade agreements that China and Japan have signed. Both countries exhibit a particular FTA “style;” Japan has adopted a more orthodox and comprehensive approach to its treaties, while China has shown greater flexibility and gradualism when dealing with FTA partners. It is still unclear whether these efforts will lead …

Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande

Faculty Publications

This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest ("Woody") Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande. The articles address issues including: teaching law students to "feel" like lawyers and not just "think" like them, using "conflict resolution advocacy" (which is not necessarily oriented to the courts), developing lawyers' …

Tribal Incorporation Of First Amendment Norms: A Case Study Of The Indian Tribes Of South Dakota, Patrick Garry, Candice J. Spurlin, Jennifer L. Keating, Derek A. Nelson

Faculty Publications

No abstract provided.

Statement Of Principles Of Accreditation And Fundamental Goals Of A Sound Program Of Legal Education, Donald J. Polden

Faculty Publications

No abstract provided.

Prosecuting Aggression, Noah Weisbord

Faculty Publications

The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference.

Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …

Primer For U.S. Lawyers On European Union Government And Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Faculty Publications

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …

Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Lidsky, Tera Peterson

Faculty Publications

Florida has been one of the most aggressive states in regulating attorney advertising. The Florida Supreme Court recently adopted new and more stringent rules regulating broadcast advertising by attorneys, and the court appears poised to adopt new and more stringent rules governing Internet advertising by attorneys. As this Article details, the problem is that Florida's new and proposed rules violate both the First Amendment and sound public policy principles. This Article provides guidance to states contemplating further regulation of attorney advertising, and it indirectly critiques current commercial speech doctrine.

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Faculty Publications

This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …

Judging Judges And Dispute Resolution Processes, John M. Lande

Faculty Publications

This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article does not address …

On Misjudging And Its Implications For Criminal Defendants, Their Lawyers And The Criminal Justice System, Rodney J. Uphoff

Faculty Publications

Unquestionably, judges misjudge. Even the most arrogant of judges ultimately will concede that all judges err and, at some point, fail to apply governing law to the facts of the case accurately. Although all might agree that judges err, not all judges, lawyers, and scholars agree on how judges should behave or on what constitutes good judging. Not surprisingly, they also disagree about misjudging and the frequency with which it occurs.In his provocative article Misjudging, Chris Guthrie contends that “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.” Based on my observations and …

Race And Wealth Disparity: The Role Of Law And The Legal System, Beverly Moran, Stephanie Wildman

Faculty Publications

In response to the prevalent view that American law and legal institutions are class and color blind, this Article provides examples of how legal institutions sometimes do create and maintain racialized wealth disparities. The Article offers examples of this phenomenon by examining a sequence of federal judicial decisions, the federal taxing statutes, the role of legal education, and access to legal services. These examples are instructive because they cut across a broad spectrum of components of the American legal system. By revisiting issues of race and wealth in different legal settings from the Constitution to federal cases, the tax system, …

Arbitration And The Individuation Critique, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

The Rise And Fall Of Private Sector Unionism: What Next For The Nlra?, Jeffrey M. Hirsch, Barry T. Hirsch

Faculty Publications

No abstract provided.

Increasing Law Students' Effectiveness When Representing Traumatized Clients: A Case Study Of The Katherine & George Alexander Community Law Center, Lynette Parker

Faculty Publications

This article contributes to the discussion of representation of traumatized clients through a detailed case study of the Katharine & George Alexander Community Law Center (KGACLC). First, it will discuss the issues that arise when students represent traumatized clients. This section will focus on the goals for training effective representation, the importance of such training, and the issues of duty of care and professional responsibility. Second, it will review the mechanics of training and mentoring law students who work with traumatized clients. This section will include a brief introduction to KGACLC and outline KGACLC's case acceptance policy, its early attempts …

A Satire Of Law Firm Employment Practices, Miriam A. Cherry

Faculty Publications

(Excerpt)

Jeremy Blachman's new book, Anonymous Lawyer, is a black-humorous stab at the hearts and souls of large elite law firms everywhere (if firms had such things as hearts and souls). The novel had its beginnings as a weblog, with someone named "Anonymous Lawyer"—ostensibly a hiring partner at a large elite law firm—posting entries on the internet. Anonymous Lawyer's posts discussed everything from over-the-top summer associate outings complete with fireworks and drunken debauchery to lamenting Daylight Savings Time and the loss of hundreds of billable hours. In December 2004, the author of the blog was revealed to be Jeremy …

Damages In Tort Litigation: Thoughts On Race And Remedies, 1865-2007, Jennifer Wriggins

Faculty Publications

The relationship between remedies and race in U.S. tort law merits attention. This essay first challenges the boundary between civil rights and tort remedies by highlighting a stunning but previously overlooked 1959 Fifth Circuit case where an individual tort remedy served as a significant civil rights remedy in the integration of public transportation throughout the South. Second, the essay focuses on the relationship between race and damages from 1865 to the present. It argues that the torts system provided access to indigent plaintiffs of all races during periods when poor people were otherwise denied legal representation in every other context. …