Digital Commons Network^™

Employee Rights In The European Community: A Panorama From The 1974 Social Action Program To The Social Charter Of 1989 , Roger J. Goebel

Faculty Scholarship

Certainly, in the eyes of the drafters of the EEC Treaty, social progress was inseparably linked with economic progress, and both were intimately related to the goal of a "union among the peoples of Europe." The Court of Justice has also recognized the importance of social policy, stating that "the Community ...is not merely an economic union," but rather has a "double aim, which is at once economic and social ..." In view of the capital importance thus accorded to the social aspect of the European Community, it is surprising that the Community's achievements in the social sphere, both through …

Lawyers At The Prison Gates: Organizational Structure And Corrections Advocacy, Susan Sturm

Faculty Scholarship

The rise of the public interest law movement ushered in an era of intense debate over the best way to provide legal representation to those unable to afford private counsel. This debate has involved two related dimensions of public interest representation. First, advocates and observers of public interest practice disagree over the proper role of lawyers acting on behalf of poor and underrepresented clients. They offer competing visions of representation spanning a continuum, from providing equal access to the courts for as many poor people as possible, to attacking the causes and effects of poverty and powerlessness.

The second dimension …

The Poverty Of Academic Rhetoric, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Mandatory Prelicensure Legal Internship: An Idea Whose Time Has Come Again, Stephen R. Alton

Faculty Scholarship

This Article explores the wisdom of imposing an internship requirement on aspiring lawyers as a prerequisite for licensure. It is my position that such a requirement can be beneficial to the new attorney, to the profession, and to the public and should thus be mandated for all those who seek admission to the practice of law. This Article begins by briefly examining the history in the United States of law-office, apprenticeship as a means of legal education. I then proceed to an examination of modern internship requirements in England and Canada. There follows a discussion of some of the more …

The Gains From Faith In An Unfaithful Agent: Settlement Conflicts Between Defendants And Liability Insurers, Michael J. Meurer

Faculty Scholarship

A pervasive problem in the settlement of liability litigation arises because liability insurers bundle their promise to indemnify the insured with a promise to represent the insured in settlement and litigation [see, e.g., Beckwith Machinery Co. v. Travelers Indemnity Co., 638 F.Supp. 1179 (W.D. Pa. 1986)]. Standard policies not only require the insurer to pay for legal representation but, more importantly, give the insurer the privilege of controlling the litigation and settlement process. The problem is how to resolve the conflict of interest between the insurer and the insured that may arise during settlement negotiations. This conflict is manifest when …

Violence Against Women And Legal Education: An Essay For Mary Joe Frug, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Finding A Suitable Lawyer: Why Consumers Can't Always Get What They Want And What The Legal Profession Should Do About It, Linda H. Morton

Faculty Scholarship

This article criticizes the inadequacy of information available to consumers seeking an attorney compatible with their needs. The article describes why such inadequacy exists – in part because the legal profession distribute information to consumers through the narrow lens of attorney self-regulation rather than through the broader lens of consumer need. Yet, in striving to maintain their autonomy, lawyers have only perpetuated the enormous gap between information the public would like to have and that which they actually receive. The article explores sources of information consumers have access to, why such sources are so limited, and finally, how the problem …

Judicial Deference To The Pto's Interpretations Of The Patent Law, R. Carl Moy

Faculty Scholarship

This article attempts to provide a basis upon which to preserve the Federal Circuit's current lawmaking primacy. Given the large body of preexisting literature on Chevron, USA, Inc v. Natural Resources Defense Council, it does not address whether Chevron allocates power between agencies and the courts optimally. Rather, the article examines how the PTO's statutory interpretations should be reviewed under Chevron. In Section I, the article places the examination in context by describing the Chevron decision and its general implications. Section II of the article examines how Chevron should be applied specifically in the context of reviewing statutory interpretations of …

Free Speech In The United States And Canada, Kent Greenawalt

Faculty Scholarship

This comparison of freedom of speech in the United States and Canada concentrates on Supreme Court decisions in the two countries and on kinds of speech mainly engaged in by extreme dissenters and political outsiders. After brief comments about constitutional language and general approaches, I discuss subversive speech and other speech that encourages criminal acts, hate speech, symbolic speech, and public demonstrations.

In both countries, a major premise of modern adjudication is that freedom of expression is a central feature of liberal democracy. Government "by the people," even in the extended sense of government by representatives, requires that citizens openly …

On The Brink: The First Amendment In The Rehnquist Court, 1990-91 Term, Joel Gora

Faculty Scholarship

No abstract provided.

Do We Really Want Ethical Government, John D. Feerick

Faculty Scholarship

The question I would like to address in this article arises out of my recent work with the New York State Commission on Government Integrity. As you may recall, the Commission was appointed by Governor Cuomo in 1987 following a series of corruption scandals in our State involving officials at all levels of government. It was a nonpartisan group comprised of a former Secretary of State, a former judge of the State's highest court, a prominent civil libertarian, a former federal prosecutor, and other prominent citizens of this State.' The Commission had a very broad mandate. It was directed to …

Rediscovering The Republican Origins Of The Legal Ethics Codes, Russell G. Pearce

Faculty Scholarship

Many commentators wrongly assume that the hired gun ideal is the foundation of our legal ethics codes. This article explains that this assumption is based on an historical mistake that has consequences for interpreting the modern codes. Judge George Sharswood, the nineteenth century scholar whose work provided the basis for the 1908 A.B.A. Canons of Ethics, had a republican conception that rejected the adversarial ethic in favor of a more nuanced conception that combined loyalty to clients with a thick obligation to the public good that both bounded client representation and required lawyers to provide political leadership. Although the emphasis …

Democracy's Dawn American Judges And The Rule Of Law Abroad, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Keeping The Practice In Clinical Education And Scholarship, Richard A. Boswell

Faculty Scholarship

No abstract provided.

The Case Against The Thrifty Food Plan As The Basis For The Food Component Of The Afdc Standard Of Need, Mary Ellen Natale, David A. Super

Faculty Scholarship

No abstract provided.

Questionable Rule Denies Food Stamps To Self-Employed Workers, David A. Super, Marilyn Katz

Faculty Scholarship

No abstract provided.

The Rights Of The Disabled In The Food Stamp Program, Eve H. Shapiro, David A. Super

Faculty Scholarship

No abstract provided.

The Future Of Legal Ethics, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Deterring The Formation Of The Attorney-Client Relationship: Disclosure Of Client Identity, Payment Of Fees, And Communications By Fiduciaries, Daniel J. Capra

Faculty Scholarship

No abstract provided.

The Devolution Of The Legal Profession: A Demand Side Perspective, Ronald J. Gilson

Faculty Scholarship

Economic analysis has not played a significant role in the increasingly intense debate over the decline of professionalism among lawyers.Economists' lack of interest in the issue may be understandable. The lawyers' lament is that the legal profession is devolving into the business of law. That this concern has not captured the economists' attention may reflect only that economists do not view the label "business" as a pejorative. If becoming a business means efficiently rendering an important service in a competitive environment, then of what is there to complain?

Lawyers, more directly concerned with maintaining their professional status, would find little …

Women In The Aids Epidemic: A Portrait Of Unmet Needs, Arlene Zarembka, Katherine M. Franke

Faculty Scholarship

While rarely a month goes by that the topic of AIDS escapes discussion in the legal literature, a survey of legal publications reveals that the implications of AIDS for women has received scant treatment by legal commentators. Unfortunately, this neglect is not unique to the legal community, but reflects a larger societal disinterest in women with AIDS.

In fact, this epidemic looks quite different from the perspective of women. The medical, social, and legal needs of women affected by AIDS are in many ways needs that preexisted AIDS, but which have been magnified by the threat and implications of HIV …

Professionalism: Rekindled, Reconsidered Or Reformulated?, Nancy J. Moore

Faculty Scholarship

It is increasingly commonplace for bar officials and others to decry what they see as a decline in "professionalism" among lawyers in recent years. For example, in 1984, former Chief Justice Warren Burger gave a speech to an ABA meeting in Las Vegas in which he chastised some members of the profession for taking their freedom to advertise as a "release from all professional restraints," as they use the "same modes of advertising as other commodities from mustard, cosmetics and laxatives to used cars.' 1 Catchy phrases, attractive well-dressed lawyers, and special rates on lossleader items are but some of …

Shutting Down The Government, Alan L. Feld

Faculty Scholarship

Actions of the federal government cost money. Legislative processes that specify the amounts and purposes of governmental expenditures control the scope and content of government actions.¹ To paraphrase Chief Justice Marshall, the power to withhold spending involves the power to destroy.²

Those involved in the legislative process ordinarily do not engage in wholesale or sudden dismantling of government activities through unheralded failures to provide funds. While disputes over funding constitute a regular part of the nation's political activity, these controversies usually concern adjustments in the level of spending and of agency operations. A decision to terminate an agency …

Reconsidering Role Assumption In Clinical Education, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Coming Of Age In A Corporate Law Firm: The Economics Of Associate Career Patterns, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

The traditional American corporate law firm, long an oasis of organizational stability, in recent years has been the subject of dramatic change. The manner in which firms divide profits, perhaps the most revealing aspect of law firm organization because it displays the balance the firm has selected between risk-sharing and incentives, has changed in a critical way. From a long standing reliance on seniority that emphasizes risk-sharing, profit division is shifting to a system based on the productivity of individual partners that emphasizes incentives. With what seems to be only a short time lag from the change in how profits …

After Professional Virtue, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Confederate And Carpetbaggers: The Precedential Value Of Decisions From The Civil War And Reconstruction Era, Jim Paulsen, James Hambleton

Faculty Scholarship

Many Texas attorneys consulting older decisions for guidance breathe sighs of mental relief when they read a Texas Supreme Court case, rather than one of those pesky Court of Appeals or Commission of Appeals decisions with an arcane writ history or "judgment adopted" designation. After all, Texas Supreme Court cases are the top of the heap, precedent-wise, unless they have been overruled. Right? Well, maybe. In Texas, there are good and bad vintages for Texas Supreme Court opinions. The Civil War and Reconstruction years, from 1861 through 1873, are a particularly interesting legal vinyard.

Surprisingly enough, despite the century or …

Professional Qualification And Educational Requirements For Law Practice In A Foreign Country: Bridging The Cultural Gap, Roger J. Goebel

Faculty Scholarship

This Article will discuss preparation for transnational legal practice, and the extent of the right to engage in transnational legal practice in major commercial centers. It is divided into five parts: (I) the role of the transnational lawyer in bridging the cultural gap; (II) education in preparation for transnational practice; (III) professional qualification requirements for foreign lawyers in New York and several major commercial centers abroad; (IV) the extent of the lawyer's right to provide services and the right of professional establishment in the EEC; and (V) some general reflections on desirable qualification requirements for law firms and individuals to …

Lesbians, Gays And Feminist At The Bar: Translating Personal Experience Into Effective Legal Argument - A Symposium, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Ethical Discretion In Lawyering, William H. Simon

Faculty Scholarship

In this Article, Professor Simon argues that conventional approaches to legal ethics are too categorical. Rather than operating within a system of formalized ethical rules, he argues, lawyers should exercise judgment and discretion in deciding what clients to represent and how to represent them. In exercising this discretion, lawyers should seek to "do justice." They should consider the merits of the client's claims and goals relative to those of opposing parties and other potential clients. They should also consider the substantive merits of the client's claims and the reliability of the standard legal procedures for resolving the problem at hand. …