Digital Commons Network^™

Defending, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Liberating Commercial Speech: Product Labeling Controls And The First Amendment, Lars Noah, Barbara A. Noah

Faculty Scholarship

As federal regulators impose increasing limits on what manufacturers may say about their products, constitutional protections for commercial speech become ever more important. Indeed, the United States Supreme Court's most recent First Amendment decisions suggest meaningful regard for the value of advertising and labeling as types of protected expression. At the same time, however, federal lawmakers are imposing ever more onerous restrictions on promotional activities and product labeling. The Authors discuss federal law relating to regulation of product labeling.

Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve The Conduct And Reputation Of The Bar, The, Russell G. Pearce

Faculty Scholarship

The Article explains how the Professionalism Paradigm distinguishes between self-interested businesspersons and altruistic professionals who place the public good above their own interests and those of their clients. The legal profession has used this Business-Profession dichotomy to obtain control of the delivery legal services, including a legislative monopoly on the practice of law. Today, the Professionalism Paradigm faces a crisis as leading lawyers, judges, and scholars complain that law has become a business and is no longer a profession. The Article “identifies this shift as a time for hope rather than as a cause for despair. Applying Thomas S. Kuhn's …

Scenes From The Continuum: Sustaining The Maccrate Report's Vision Of Legal Education Into The Twenty-First Century, J. Michael Norwood

Faculty Scholarship

In 1992, the ABA Task Force on Legal Education and the Profession, under the leadership of its Chairman Robert MacCrate, came out with what has become popularly known as the MacCrate Report. This epochal document has redefined the scope of the current debate on how law school should be taught and what values should make up the core of legal education. In this article, Professor Norwood provides background on the Report and an overview of its contents. He then forecasts the effect it is likely to have in the coming years, noting impediments likely to arise from law schools reluctant …

Regulatory Decisionmaking In The European Commission, George A. Bermann

Faculty Scholarship

As an institution variously described as the "motor" or "engine" of European integration and as the European Union's "executive branch," the Commission of the European Communities finds itself at the center of Community decisionmaking. Yet its decisional processes are still quite poorly understood, at least in the United States. The relatively poor grasp of Commission decisionmaking is certainly not due to any general lack of interest in procedure within the American audience. The problem lies more in the highly restrictive view of decisionmaking that traditionally dominates procedural accounts of the Community institutions. Those accounts have tended to reflect three preoccupations. …

Rediscovering Client Decisionmaking: The Impact Of Role-Playing, Mary Zulack

Faculty Scholarship

There are more things of importance to representing clients than are disclosed through a typical interview or counseling session, even a session undertaken by a lawyer earnestly attempting to hear rather than ignore the client. We lawyers are often vividly aware, when we pause to contemplate the point, that we do not know all we should about our clients. We may also believe that we have great gulfs of knowledge and experience to cross in order to hear and understand any particular client. Further, we fear that our ability to cross these gulfs is limited by the human, and lawyerly, …

European Community Law From A U.S. Perspective, George A. Bermann

Faculty Scholarship

Although less than forty years have passed since the founding of the European Economic Community (now the European Community), the lifetime of the Community is well marked temporally. The term of each Commission furnishes a convenient time-line for measuring the Community's progress in legal integration. Since the 1970s, each year has been punctuated by two or more "summit" meetings of heads of state or government. These summits not only are key markings in their own right, but also furnish an occasion for additional monitoring of the Community's state of health. Throughout the 1970s and into the 1980s, the Community submitted …

We Make The Road By Walking: Immigrant Workers, The Workplace Project, And The Struggle For Social Change Symposium: Economic Justice In America's Citie: Visions And Revisions Of A Movement, Jennifer Gordon

Faculty Scholarship

This Article addresses the problems faced by immigrant workers on Long Island. Part I briefly examines the transition on Long Island from an economy based on manufacturing to one based on services, as well as the growth of the underground economy. Part II addresses the failure of government agencies, legal services centers, and unions to confront the problems faced by immigrant workers in this period of economic transition. Part III presents the Workplace Project model as an alternative to those institutions. Part IV offers a critique of the Project, focusing on the conflict between providing individual legal representation and organizing …

Class Wars: The Dilemma Of The Mass Tort Class Action, John C. Coffee Jr.

Faculty Scholarship

Legal change – like organic evolution – can occur at varying paces. Long periods of gradual evolution are sometimes punctuated by brief moments of rapid, irregular change. Recent developments in class action practice bear witness to this phenomenon: during the 1990s, evolution has given way to mutation. At least with respect to mass torts, the development of the class action had been slow and halting. Well into the 1980s, federal courts uniformly resisted attempts to certify such mass tort class actions, largely out of concern that the interests of the individual litigant would be submerged within any large-scale proceeding. By …

Cooperating Clients, Daniel Richman

Faculty Scholarship

Indicted on serious narcotics charges, Jose Lopez retained Barry Tarlow to “vigorously defend and try the case.” Tarlow was up to the task but warned Lopez that it was “his general policy not to represent clients in negotiations with the government concerning cooperation,” and that he did not plan to make any exception for Lopez. As Tarlow later explained, he found such negotiations “personally[,] morally and ethically offensive.” This arrangement suited Lopez just fine, until he wavered in his resolution. Encouraged by a co-defendant, worried about his children, and hoping to obtain an early release from prison …

Business Lawyers And Value Creation For Clients, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

This Symposium marks an important milestone in legal scholarship and education: The spotlight falls on business lawyers for a change. Ten years ago, when one of us first wrote about what business lawyers really do, no one had devoted much attention to this part of the profession. In his broadside against lawyers, Derek Bok, then President of Harvard University and formerly dean of its law school, reserved his invective for litigators and the litigation process. Business lawyers captured the attention of very few critics; even on the unusual occasion when we were noticed, the criticism was at least funny. If …

A Tribute To Dean Robert A. Stein: Former Dean Of The University Of Minnesota Law School, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Forward: Ed Sparer's Legacy, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

You've Got It Coming -- Winning Discovery Through Effective Motions Practice, David J. Stout

Faculty Scholarship

An effective discovery motion begins with the underlying discovery document and a thoughtful plan for discovery.

This article will begin with a brief overview of the more important substantive legal points relevant to discovery. The materials will then address some of the more recurrent problems encountered by counsel during the course of discovery. Finally, the discussion will examine the timing, form and content of discovery motions.

Against Marriage, Steven K. Homer

Faculty Scholarship

What is marriage? In the debate surrounding same-sex marriage, the central term has gone undefined. Using the Hawaii Supreme Court's decision in Baehr v. Lewin as a starting point, this Note argues that marriage lacks legal as well as experiential coherence. A series of legal and social moves intended, on the one hand, to preserve the dominance of heterosexuality over gays and lesbians and, on the other, to allow, heterosexuals to escape the dominance of heterosexuality over themselves, has left little conceptual space for marriage. That is, to speak of "extending marriage" to same-sex couples creates the illusion that marriage …

Pretrial Case Management Under The Amended Rules: Too Many Words For A Good Idea, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Unnatural Expansion Of Trademark Rights: Is A Federal Dilution Statute Necessary?, Kenneth L. Port

Faculty Scholarship

This article is a systematic review of proposed section 43(c ). Proposed section 43(c ) would create a federal cause of action for trademark dilution and would grossly expand trademark rights. The article reviews both the practical implications and theoretical underpinnings of the dilution concept. Part II describes the basic origins and history of the dilution debate. Part IV(A) presents the practical problems that proposed section 43(c ) raises. Part IV(B) critiques some of the more popular theoretical justifications that are typically used to support granting intellectual property rights and concludes that no satisfactory theoretical justification exists to warrant an …

The Dark Secret Of Progressive Lawyering: A Comment On Poverty Law Scholarship In The Post-Modern, Post-Reagan Era, William H. Simon

Faculty Scholarship

In 1971, Stephen Wexler argued in "Practicing Law for Poor People" that what poverty lawyers should be doing was, in a word, organizing. I Wexler flaunted a tough-minded disdain, not only for individual claim assertion, but also for the purely individual concerns of particular clients. Instead, he advocated efforts to assist the poor to collective power.

In his 1977 diagnosis of the state of poverty practice, Gary Bellow argued that what legal services lawyers should be doing was "focused case pressure." He proposed aggregating small housing or welfare claims in order to generate pressure on institutions engaged in systemic misconduct …

Violence Against Lesbians And Gay Men, Suzanne B. Goldberg, Bea Hanson

Faculty Scholarship

Faggot! Dyke! Pervert! Homo!" Just words? Or rhetoric that illuminates and fuels hatred of lesbians and gay men? How often are these words supplemented by the use of a bat, golf clubs, a hammer, a knife, a gun? Studies indicate that lesbians and gay men experience criminal victimization at rates significantly higher than other individuals and are the most frequent victims of bias crime.

Since lesbians and gay men live all across the country – in large cities, small towns, and rural areas – we can be targets of bias crime no matter where we live. From the attacks against …

The Lawyer's Duty Of Public Service: More Than Charity?, Tigran W. Eldred, Thomas Schoenherr

Faculty Scholarship

The question of whether lawyers have an ethical duty to perform public service-and, in particular, whether the obligation requires that a percentage of time be devoted to providing free legal services to the poor'-has a disjointed and uneven history. Leaders of the bar, espousing various and often conflicting views of morality, compassion, noblesse oblige, and individual autonomy, have contributed to this state of affairs, creating a complicated web of vague ideals that today jeopardizes the legal profession's sense of its own public obligations. On the one hand, the legal profession remains dedicated to the traditional view that public service …

Reflections On Judge Weinstein's Ethical Dilemmas In Mass Tort Litigation, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

The Impact Of The European Community On Labor Law: Some American Comparisons, Marley S. Weiss

Faculty Scholarship

No abstract provided.

1990 Farm Bill's Inaccessible-Resource Provision Applies To Vehicles, David A. Super

Faculty Scholarship

No abstract provided.

Charity Begins At Home: Alternatives In Nonprofit Regulation, Jon M. Garon

Faculty Scholarship

No abstract provided.

Creating A Classroom Component For Field Placement Programs: Enhancing Clinical Goals With Feminish Pedagogy, Linda H. Morton

Faculty Scholarship

This article supports the use of feminist pedagogy to provide the ideal environment for engaging clinic students in self-learning. The author describes the complementary relationship between clinic goals and feminist pedagogy, illustrated through her use of a student-facilitated and non-hierarchical teaching model in her externship classes. The model used provides a unique and valuable educational environment for the training of prospective professionals.

Teach Your Students Well: Valuing Clients In The Law School Clinic., Ann Juergens

Faculty Scholarship

Law schools, teaching primarily by the casebook method, generally avoid the thorny issues that real clients pose.' Recently, however, law review articles and the ""regular classroom"" have referred more frequently to real client stories. Law school clinics are a primary source of client stories. Despite increased attention to clinical programs, client interests are frequently subordinated to the goals of students, clinical law teachers and law schools. This article urges clinicians to constantly evaluate whether and how well they and their students take their clients' interests and perspectives on clinical education into account. It argues that clinic teachers must learn to …

Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer

Faculty Scholarship

The authors' concern that domestic violence reform statutes might not be having their intended effect sparked their decision to evaluate the protective order statutes empirically. The authors therefore distributed a lengthy survey to 843 domestic violence organizations nationwide that helped battered women obtain protective orders. The survey focused on three issues. The first issue was access to the courts: Is the protective order remedy accessible to battered women? The second issue related to the procedures for obtaining orders of protection: Are judges granting orders in appropriate cases, and are they awarding the full range of remedies contemplated by the reform …

Legacy And Future Of Corrections Litigation, Susan P. Sturm

Faculty Scholarship

This Article attempts to provide a framework for assessing the legacy and future of public interest advocacy in one particular area – corrections. It documents a shift from a test case to an implementation model of advocacy, and urges the development of effective remedial strategies as a method of linking litigation to a broader strategy of correctional advocacy.

I have chosen to focus on this particular institutional context for several reasons. On a pragmatic level, the Edna McConnell Clark Foundation, which for the last twenty years has been the primary source of funding for corrections litigation by private, nonprofit organizations, …

Women Judges And Better Justice For All, John D. Feerick

Faculty Scholarship

According to the most recent report of The New York Judicial Committee on Women in the Courts, published in October 1992, out of a total of 1,129 judges, only 183 are female. It is clear women are under-represented in the judiciary. Decisive action is required in order to increase opportunities for women to become judges. In January 1992, Governor Cuomo's Task Force on Judicial Diversity ("the Task Force") issued its report. The Task Force strongly supported diversity and set forth compelling reasons why a diverse bench is in the public interest. The report reminded us that "diversity is vital because …

Building Bridges Between Theory And Practice, Activism And Scholarship, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.