Digital Commons Network^™

An Evaluation Framework For Allied Legal Professional Programs: Assessing Improvements In Access To Justice, Andrea L. Miller, Paula Hannaford-Agor, Kathryn Genthon

Faculty Publications

The American legal system has a civil access-to-justice gap, wherein many people with civil legal issues are unable to obtain legal assistance. People with civil legal issues who cannot afford an attorney frequently must proceed through the legal system on their own. As the number of Self-Represented Litigants (SRLs) grows, several jurisdictions have investigated the creation of an additional tier of legal service providers, who can give limited legal assistance at a lower price than attorneys. For the purposes of this report, we will refer to these service providers as Allied Legal Professionals (ALPs). ALP programs can involve a wide …

Teaching Leadership In American Law Schools: Why The Pushback?, Martin H. Brinkley

Faculty Publications

In September 2020, I participated in a panel discussion with several other deans at Baylor Law School’s 2020: Vision for Leadership Conference. The subject was “Leadership Programming in Law Schools.”

My assignment was to account for why teaching leadership might meet with resistance from inside law schools, despite widespread agreement that lawyer-leaders have always been and are always likely be critical to the survival of American democracy, as well as our fellow citizens’ hopes of living meaningful, satisfying lives.

This essay endeavors to memorialize and expand on the views I expressed on the panel.

Expanding The Legal Services Ecosystem: An Educational Model To Improve Access To Immigration Justice Through Legal Paraprofessionals, Michele R. Pistone

Faculty Publications

Using disruptive innovation theory as a guidepost, this Article analyzes what is happening in the market for legal services and legal education. Disruption theory is also used to try to anticipate future developments in the market for legal education.

Guided by this theory, this Article discusses a new model of education about the law implemented in anticipation of inevitable changes in the market for legal education.The new online educational program is being modeled in the field of immigration law to train more students about immigration law with the goal of increasing the pool of people qualified to apply to become …

The "Innocence" Of Bias, Osamudia James

Faculty Publications

No abstract provided.

South Carolina Practice Materials: A Selective Annotated Bibliography, Eve Ross

Faculty Publications

No abstract provided.

"It Is Not Necessary For Eagles To Be Crows": Book Review, Neil Fulton

Faculty Publications

No abstract provided.

Untangling Attorney Retainers From Creditor Claims, Cassandra Burke Robertson, Jesse Wynn

Faculty Publications

Clients will often use a retainer to secure an attorney’s representation. But clients in economic distress may have creditors that are eager to access the client’s funds in the attorney’s hands. Attorneys, clients, courts, and regulators have struggled to understand who has the best claim to such retainer funds. In this Article, we attempt to untangle the most common areas of confusion. We conclude that Article 9 of the Uniform Commercial Code (UCC) offers strong protection for an attorney’s interest in client retainers through security interests, even though some courts have misapplied the UCC in this context. Further, we recommend …

An Evaluation And Performance Measure Framework For Online Dispute Resolution Programs: Assessing Improvements In Access To Justice, Andrea L. Miller, Paula Hannaford-Agor, Kathryn Genthon

Faculty Publications

One type of programming designed to improve access to justice for civil litigants is online dispute resolution (ODR). ODR generally consists of an internet-based software platform on which litigants can resolve legal problems, including negotiating settlements or exchanging information to narrow the factual and legal issues in a formal court hearing. ODR programs were first developed by online commercial businesses such as PayPal, eBay, and Amazon to resolve disputes more effectively between buyers and sellers, but they are still a relatively new innovation in courts, with most programs launching within the past three years.

ODR programs are intended to increase …

The New Skill On The Block: Using Social Media In The Law School Classroom To Facilitate Learning, Rosa Castello

Faculty Publications

(Excerpt)

The emergence and rapid growth of technology has dramatically changed society, including the way we communicate and interact. People are gravitating toward shorter forms of written communication, like blogs and tweets. And it seems everyone interacts with others in some way on an online social media platform, exchanging ideas, connecting with friends and colleagues, and offering support.

As a Legal Writing professor, I wonder how this change in written communication will impact legal education and the profession and how I can better prepare my students for a professional environment that embraces these changes. Communication is an essential lawyering skill. …

Trademarks In Conversation: Assessing Genericism After Booking.Com, Laura A. Heymann

Faculty Publications

It is a fundamental principle of U.S. trademark law that to serve as a trademark, a word or phrase must “indicate the source” of the goods or services with which it is associated and, conversely, that a term that is understood to be the common name of a good or service is “generic” and cannot be protected as a trademark. Yet it still seems difficult to determine exactly what each concept means, particularly when the actual “source” of any goods or services might be opaque to consumers.

In part, this difficulty comes from the fact that status as a trademark …

Reimagining Civil Case Management, Paula Hannaford-Agor

Faculty Publications

Court rules are necessary, but insufficient by themselves to address problems of cost and delay. Instead, state courts today are embracing a considerably broader view of civil case management, one that encompasses the total constellation of court rules, business practices, culture and governance, and staffing and technology infrastructure. Effective case management now recognizes the importance of five core components that are necessary to achieve timely, cost-effective, and procedurally fair justice: (1) triage to ensure that cases receive attention proportional to their needs; (2) process simplification to remove procedural barriers that unnecessarily complicate litigation; (3) stakeholder engagement to ensure clear communication …

Blockchain Technology: A Survey Of Croatian Business Leaders, Dražen Zec, William G. Heninger

Faculty Publications

Blockchain or distributed ledger technology emerged over ten years ago as the underlying technology of bitcoin. Blockchain is a special kind of database with individual records or blocks linked together in a sequential list called chain of blocks. These records are validated by multiple nodes in peer-to-peer networks and they are immutable. It is a decentralized system, with no need for intermediaries where all decisions are made using different consensus mechanisms. High expectations from blockchain technology, combined with a lack of deeper knowledge about the technology are expressed in the results from the survey conducted on a sample of Croatian …

Diversity From The Perspective Of Corporate Boards And Lawyer Disciplinary Boards, Lissa L. Broome, John M. Conley

Faculty Publications

This Article addresses the organizing question of this symposium—whether diversifying state medical boards (SMBs) would improve their effectiveness in disciplining doctors—by drawing on the comparable experiences of corporate boards of directors and lawyer disciplinary boards. Reexamining our own qualitative study of corporate board diversity conducted several years ago, we find that almost of all of the arguments for board diversity raised in the business literature or our own interviews also tend to support diversity on SMBs. Reviewing the legal profession’s experience with the diversity question on lawyer disciplinary boards, we find that many of these arguments have also been recognized, …

Monopolizing Whiteness, Erika K. Wilson

Faculty Publications

In racially diverse metropolitan areas throughout the country, school district boundary lines create impermeable borders, separating affluent and predominantly white school districts from low-income, predominantly nonwhite school districts. The existence of predominantly white and affluent school districts in racially diverse metropolitan areas has material consequences and symbolic meaning. Materially, such districts receive greater educational inputs such as higher per-pupil spending, higher teacher quality, and newer facilities than their neighboring more racially diverse districts. Symbolically, owing to the material and status-based value attached to whiteness, the districts are also viewed as elite, which creates a magnetic effect that draws white affluent …

Court-Appointment Compensation And Rural Access To Justice, Hannah Haksgaard

Faculty Publications

Hourly rates paid to court-appointed lawyers impact access to justice. Court appointed lawyers provide necessary counsel in civil and criminal cases, yet hourly rates in many jurisdictions are so low that many lawyers cannot afford to take court-appointed cases. This article argues that low hourly rates cause problems: namely, appointed lawyers will be insufficient in number, inaccessible to their clients, and sometimes even ineffective. These problems are heightened in rural America where they are compounded by geographical distance and the rural lawyer shortage. This article concludes by suggesting a number of policy solutions.

Toolkit Or Tinderbox? When Legal Systems Interface Conflict, Christie S. Warren

Faculty Publications

No abstract provided.

Relationships And Retaliation In The #Metoo Era, Nicole Buonocore Porter

Faculty Publications

In this #MeToo era, so much important work is being done (and so many stories are being told and listened to), but very little of the work focuses on retaliation. And none of the work focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, it is the fear of harming workplace relationships. This Article will use a real-life story of harassment to demonstrate how much workplace relationships matter-especially to women-and how the fear of harming those relationships often affects an employee's willingness to report harassment. Thus, this Article argues for …

Responding To Health Needs Of Women, Children And Adolescents Within Syria During Conflict: Intervention Coverage, Challenges And Adaptations, Chaza Akik, Aline Semaan, Linda Shaker-Berbari, Zeina Jamaluddine, Ghada E. Saad, Katherine Lopes, Joanne Constantin, Abdulkarim Ekzayez, Neha S. Singh, Karl Blanchet, Jocelyn Dejong, Hala Ghattas Ph.D.

Faculty Publications

Background:

Women and children suffer disproportionately in armed-conflicts. Since 2011, the protracted Syrian crisis has fragmented the pre-existing healthcare system. Despite the massive health needs of women and children, the delivery of key reproductive, maternal, newborn, child and adolescent health and nutrition (RMNCAH&N) interventions, and its underlying factors are not well-understood in Syria. Our objective was to document intervention coverage indicators and their implementation challenges inside Syria during conflict.

Methods:

We conducted 1) a desk review to extract RMNCAH&N intervention coverage indicators inside Syria during the conflict; and 2) qualitative interviews with decision makers and health program implementers to …

Measuring "Access To Justice" In The Rush To Digitize, Amy J. Schmitz

Faculty Publications

Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A21. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and …

Concepts, Not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions And Precedent, Howard Wasserman

Faculty Publications

Battle lines are drawn on the permissibility and validity of injunctions in federal constitutional litigation purporting to halt government enforcement of a challenged law against all possible targets of that law and to protect all rights holders against enforcement. Courts, members of the Supreme Court, and legal scholars are divided — some supporting and others rejecting them as impermissible.; I have staked my position in the latter camp.

From that starting point, this paper considers three subsidiary issues: 1) the proper label for these injunctions, arguing that “universal” or “non-particularized” is a more accurate term than the prevailing “nationwide”; 2) …

Walk The Line: Aristotle And The Ethics Of Narrative, Melissa Love Koenig, Lori D. Johnson

Faculty Publications

Lawyers are storytellers who face tremendous pressure to persuade judges and juries of the rightness of their stories. Zealous advocacy has long been a touchstone in lawyering, but lawyers need to balance zealousness with candor to the tribunal. As narrative and storytelling have evolved in scholarship and practice as powerful tools for persuasion, lawyers can find themselves walking a delicate ethical line. The applicable Model Rules of Professional Conduct do not provide a sufficient framework for ensuring sufficient candor in the use of narrative, particularly when considering the cultural and psychological power inherent in stories. Thus, lawyers can find themselves …

Why Is Bribery Pervasive Among Firms In Sub-Saharan African Countries? Multi-Industry Empirical Evidence Of Organizational Isomorphism, Nnaoke Ufere, James Gaskin, Sheri Perelli, Antoinette Somers, Richard Boland Jr.

Faculty Publications

Motivated by the prevalence and persistence of corruption in Sub-Saharan Africa (SSA) despite high-profile anticorruption efforts, and by calls for more research on unethical organizational behavior by firms in Africa, we investigated the link between bribery in 12 SSA countries and the phenomenon of organizational isomorphism, long used to explain legitimate, but rarely, illegitimate firm practices. Analysis of 5989 SSA firms in three distinct industries known for high levels of bribery reveals direct positive relationships between bribery and its perception as frequently practiced in specific industries (“mimetic isomorphic effect”); institutional constraints on businesses (“coercive isomorphic effect”); and local market rivalry …

Our Federalism On Drugs, Jonathan Adler

Faculty Publications

Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the …

Measuring The Impact Of Access To Justice Programs: An Assessment Tool For Funders And Policymakers, Thomas M. Clarke, Paula Hannaford-Agor

Faculty Publications

Across the fifty states and the nation, many organizations have implemented a variety of programs to reduce the access-to-justice gap. The result is a widely varying patchwork of capabilities that provide different services and solutions in very different amounts that do not necessarily or even usually align with the problems that the target populations face. This paper proposes more of an “engineering” approach by introducing an analytical tool for organizations working on closing the access gap to estimate the potential impact of proposed solutions.

The tool can be used to: 1) assess the magnitude of an access problem that could …

Ethical Compass: Celebration, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Let’s raise our glasses to toast our esteemed Chief Judge, the Honorable Janet DiFiore, for making Presumptive ADR a central part of the New York Office of Court Administration’s civil case management. In her February 26, 2019 State of the Judiciary Address, Chief Judge Janet DiFiore announced that the New York Office of Court Administration is formally adopting Presumptive ADR. Although all ADR processes such as settlement conferences, negotiations, arbitration and early neutral evaluation may be used to help settle cases, a focus will be on mediation. Presumptive ADR will apply to almost all civil cases filed in New …

Arbitration Law Update: 2019–2020 (July 2020), Scott Eichorn, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases during the last year that are of particular relevance to the securities arbitration practitioner, as well as cases on the horizon for the coming year. The decided cases focus on class arbitration, arbitrability, customer identification, discovery abuse, grounds to modify arbitration awards, enforceability of arbitration agreements, and challenges to Regulation Best Interest. The upcoming cases focus on class arbitration and arbitrability.

Preventing Whack-A-Mole Management Of Consumer Debt Cases: A Proposal For A Coherent And Comprehensive Approach For State Courts, Paula Hannaford-Agor, Brittany Kauffman

Faculty Publications

The debt burden is growing, and there is a strong likelihood that state courts will see corresponding increases in debt collection caseloads. To meet the challenge, state courts need to implement policies, rules, procedures, and business practices to manage consumer debt collection cases in a more consistent and coherent manner. As part of the Civil Justice Institute Implementation Plan, the National Center for State Courts and Institute for the Advancement of the American Legal System conducted preliminary research to document the impact of rules enacted in New York State on consumer debt litigation. The project also included an exploratory survey …

In Pursuit Of Economic Justice: The Political Economy Of Domestic Violence Law And Policies, Deborah M. Weissman

Faculty Publications

Intimate partner violence (“IPV”) is often exercised as an act of coercion by abusers who engage in strategies to interfere with their partners’ ability to engage productively in the workplace and deny them control over economic resources, that is, to deny them agency. Certainly, awareness of the insidious facets of economic coercion of IPV has expanded in recent years. However, attention to the efficacy of legal and policy responses to the economic consequences of such abuse has not received commensurate attention. Federal and state laws designed to address economic abuse are applied haphazardly if at all. The laws themselves, moreover, …

Sales Order Backlog And Corporate Social Responsibility, Li Sun, Brian Walkup, Kean Wu

Faculty Publications

We examine the impact of sales order backlog, an important leading indicator of firm performance, on corporate social responsibility (CSR) performance (measured as responsible and irresponsible CSR performance). We rely on the stakeholder view and the resource availability view of CSR to develop our hypotheses. Under the stakeholder view, we posit a positive relation between sales order backlog and CSR performance. Under the resource availability view, we posit this relationship to be negative. Our empirical evidence shows a significant positive relation between order backlog and irresponsible CSR performance, suggesting that firms with higher order backlog demonstrate lower overall CSR performance. …

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …