Digital Commons Network^™

The Lawyer's Toolbox: Teaching Students About Risk Allocation, Dana Malkus, Scott Stevenson, Eric J. Gouvin, Usha Rodriques

Faculty Scholarship

This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panel focuses on techniques for teaching risk allocation as part of transactional skills classes. The panelists describe their approaches to teaching risk allocation, from syllabus design to final evaluations. How can a professor help students to understand the basic concepts of risk, the role risk plays in business and legal decisions, and how they can help clients manage risk. The techniques for teaching risk allocation include hypotheticals, visual aids, and hands-on assignments. The panelists each take their students down a different path …

Las Voces De America: Reflecting On Mari Matsuda's Voice, Stories, And Analysis, Margaret E. Montoya

Faculty Scholarship

Professor Matsuda's exhortation to listen to people of color was certainly heard and seized by people of color. It spoke to me personally and inspired me as I was writing my first article, Mascaras, Trenzas y Grerias. Once the multiracial group of scholars that took the name "LatCrit" organized ourselves, we deliberately and intentionally centered our annual conferences around listening to the voices at the bottom, including the local activists in the cities in which we met. We listened to such voices as both method and substance.

The Price Of Legal Education, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Who Will Regulate Class Action Lawyers?, Nancy J. Moore

Faculty Scholarship

In 2003, I published an article entitled “Who Should Regulate Class Action Lawyers?”1 In that article, I defended the decision of the American Bar Association’s (“ABA”) Commission on Evaluation of the Model Rules of Professional Conduct (the “Ethics 2000 Commission”), for which I was Chief Reporter, not to propose any substantial amendments to the ABA Model Rules of Professional Conduct (“Model Rules”) concerning the ethical conduct of class action lawyers.

There are many ethical issues that confront class action lawyers. In my 2003 article, I focused on conflicts of interest—an issue that courts and commentators have had difficulty resolving and …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Faculty Scholarship

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

Big Data In Small Hands, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

"Big data" can be defined as a problem-solving philosophy that leverages massive data-sets and algorithmic analysis to extract "hidden information and surprising correlations." Not only does big data pose a threat to traditional notions of privacy, but it also compromises socially shared information. This point remains under appreciated because our so-called public disclosures are not nearly as public as courts and policymakers have argued — at least, not yet. That is subject to change once big data becomes user friendly.

Most social disclosures and details of our everyday lives are meant to be known only to a select group of …

Prescriptions For Ethical Blindness: Improving Advocacy For Indigent Defendants In Criminal Cases, Tigran W. Eldred

Faculty Scholarship

The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-­known: severe underfunding, excessive workloads, and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided. Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings. To answer this question, this Article focuses on the psychology of ethical decision making. Relying on research that reveals the subtle ways that self-­interest can cause people to overlook unethical behavior, it argues …

Legal Education At A Crossroads: Innovation, Integration, And Pluralism Required!, Karen Tokarz, Antoinette Sedillo Lopez, Peggy Maisel, Robert Seibel

Faculty Scholarship

Although historically slow to change, law schools are now facing enormous pressure from educators, students, lawyers, judges, clients, and the public to rethink legal education and the lawyer‘s role in society. Now more than ever, there is robust national debate on the threshold contributions law schools should make to the preparation of law graduates for entry into practice. The clamor for reform in legal education is precipitated by a confluence of factors, including new insights about lawyering competencies and experiential legal education; the shifting nature of legal practice in the United States; a decrease in law jobs; changes in the …

Representation For The Accused: Haiti's Thirst And A Role For Clinical Legal Education, Kate Bloch

Faculty Scholarship

No abstract provided.

Language Access Laws And Legal Issues: A Local Official's Guide, David Jung, Noemí O. Gallardo

Faculty Scholarship

No abstract provided.

Dispute System Design: A Comparative Study Of India, Israel And California, Sheila Purcell

Faculty Scholarship

No abstract provided.

Ineffective Assistance Of Library: The Failings And The Future Of Prison Law Libraries, Jonathan Abel

Faculty Scholarship

The prison law library has long been a potent symbol of the inmate's right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research …

Representing The Poor Legal Advocacy And Welfare Reform During Reagan's Gubernatorial Years, Mark N. Aaronson

Faculty Scholarship

No abstract provided.

The Upside Of Losing, Ben Depoorter

Faculty Scholarship

No abstract provided.

Successes, Failures, And Remaining Issues Of The Justice System Reform In Japan: An Introduction To The Symposium Issue, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

Cases And Controversies: Some Things To Do With Contracts Cases,, Charles L. Knapp

Faculty Scholarship

No abstract provided.

All’S Well That Ends Well: The Importance Of Full And Effective Closure In Attorney-Client Relationships, Gail E. Silverstein

Faculty Scholarship

This Article addresses a subject that has not received serious academic attention in law or in clinical scholarship: how lawyers should end their relationships with clients. As human beings, we intuitively understand the importance of endings in relationships, and lawyer-client relationships often impact both the lawyer and the client. Despite the amount of attention paid to other aspects of client interviewing and counseling, such as how to conduct an effective initial client interview, there is relatively little literature on how to achieve effective closure. This Article draws on research from the therapeutic professional field about how to effectively end professional …

Crimes Without Punishment An Update On Violence Against Women And Impunity In Guatemala, Karen Musalo, Blaine Bookey

Faculty Scholarship

No abstract provided.

Sensibilities For Social Justice Lawyers, Ascanio Piomelli

Faculty Scholarship

No abstract provided.

Law As A Profession: Examining The Role Of Accountability, Susan Saab Fortney

Faculty Scholarship

In asserting that law is a profession, not a business, lawyers often refer to the role that self-governance plays in the legal profession. Julius Henry Cohen captured this sentiment in the following exhortation: “Ours is a profession...The sins of one of us are the sins of all of us.” Come, brethren, let us clean house.” Meaningful self-governance requires accountable and independent professionals. This article tackles accountability as fundamental aspects of professionalism. The examination of accountability considers fissures in accountability as demonstrated in lawyers’ rush to jump on the limited liability bandwagon and resistance to mandatory legal malpractice insurance and insurance …

The Litigation Finance Contract, Maya Steinitz

Faculty Scholarship

Litigation funding-for-profit, nonrecourse funding of a litigation by a nonparty-is a new and rapidly developing industry. It has been described as one of the "biggest and most influential trends in civil justice" today by RAND, the New York Times, and others. Despite the importance and growth of the industry, there is a complete absence of information about or discussion of litigation finance contracting, even though all the promises and pitfalls of litigation funding stem from the relationships those contracts establish and organize. Further, the literature and case law pertaining to litigation funding have evolved from an analogy between litigation funding …

Adopting Law Firm Management Systems To Survive And Thrive: A Study Of The Australian Approach To Management-Based Regulation, Susan Saab Fortney, Tahlia Gordon

Faculty Scholarship

In Australia, amendments to the Legal Profession Act require that incorporated legal practices (ILPs) take steps to assure compliance with provisions of the Legal Profession Act 2004. Specifically, the legislation provides that the ILP must appoint a legal practitioner director to be generally responsible for the management of the ILP. The ILP must also implement and maintain “appropriate management systems" to enable the provision of legal services in accordance with the professional obligations of legal practitioners. Because the new law did not define “appropriate management systems” (AMS) the Office of Legal Services Commissioner for New South Wales worked with representatives …

Training Lawyer-Entrepreneurs, Luz E. Herrera

Faculty Scholarship

The Great Recession has caused many new attorneys to question their decisions to go to law school. The highly publicized decline in employment opportunities for lawyers has called into question the value of obtaining a law degree. The tightening of the economy has diminished the availability of entry-level jobs for law graduates across employment sectors. Large law firms are laying-off lawyers, bringing in smaller first year associate classes, hiring more contract and experienced lateral attorneys. Government entities and public interest organizations have suffered furloughs, and hiring freezes, and are relying more on volunteers than on new employees to get the …

Law Clinics In Taiwan: Can Clinical Legal Education Succeed In This Civil Law Jurisdiction With An Undergraduate Legal Education System?, Serge A. Martinez

Faculty Scholarship

Law school clinics' are an important part of legal education around the world, but there are still many places without clinics, including Taiwan. It is important for Taiwanese legal educators to consider whether and how clinical education might fit into the Taiwanese legal education system. When discussing clinical education, several concerns are commonly raised. are undergraduate students capable of doing and benefitting from clinical work? Is student practice legal? What effect does student practice have on quality of representation? How does a clinic fit with the existing apprenticeship program? Who would teach a clinic? How do clinics fit with the …

The Public Defender As Anti-Trafficking Advocate, An Unlikely Role: How Current New York City Arrest And Prosecution Policies Systematically Criminalize Victims Of Sex Trafficking, Kate Mogulescu

Faculty Scholarship

No abstract provided.

Regulating Conflicts Of Interest In Global Law Firms: Peace In Our Time?, Janine Griffiths-Baker, Nancy J. Moore

Faculty Scholarship

The phenomenon of the global law firm has transformed the face of international law practice. The practice of law has itself become global, as lawyers play their part in the growing international market for corporate and commercial services. The global expansion of legal practice has prompted several jurisdictions to consider how their own global legal service markets should be regulated. To date, only limited scholarly consideration has been given to the practicalities of regulating the day-to-day practice of law on an international scale.

This Article attempts to shed light on methods of regulating the conduct of lawyers in the context …

The Kids Aren't Alright: Every Child Should Have An Attorney In Child Welfare Proceedings In Florida, Michael J. Dale, Louis M. Reidenberg

Faculty Scholarship

This article is a continuation of a discussion as to why, as a matter of Florida constitutional law, public policy, and professional ethics, Florida's children need independent attorneys from the inception of all dependency and termination of parental rights cases to their completion. It is based upon events which have occurred since the authors' last article on this topic in the Nova Law Review, including the Barahona case, the resolution by the American Bar Association (ABA) in August 2011 at its Annual Convention in Toronto adopting the ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency …

Saving Smokers From Themselves: The Paternalistic Use Of Cigarette Taxes, Gary M. Lucas Jr.

Faculty Scholarship

Governments at all levels have significantly increased cigarette taxes in recent years. Under the framework traditionally used by tax policy analysts, these tax increases are justified (1) if they are necessary to force smokers to internalize the harm that smoking causes others or (2) if they are a fair and efficient way to fund the government. But economists have generally concluded that on net, smokers do not impose large costs on third parties. In addition, heavily taxing cigarettes places a significant financial burden on low-income smokers and their families, which raises fairness concerns. As a result, scholars who support cigarette …

The Sophisticates: Conflicted Representation And The Lehman Bankruptcy, Milan Markovic

Faculty Scholarship

Scholars have long suggested that attorney conflict of interest rules are too onerous and that sophisticated clients may not need the protection of such rules.

This article utilizes the law firm of Sullivan & Cromwell’s representation of Lehman Brothers during the financial crisis as a case study to contend that attorney conflicts of interest can undermine the representation of even extremely sophisticated corporate clients. This is because the significance of a particular conflict can change during the course of a representation and the fact that a sophisticated client may have previously consented to a conflict does not ensure that the …

Beyond The First Amendment: Shaping The Contours Of Commercial Speech In Video Games, Virtual Worlds And Social Media, Jon M. Garon

Faculty Scholarship

In Brown v. Entertainment Merchants Association (2011), the Supreme Court stated unequivocally that video games are entitled to the same broad First Amendment protections as those afforded to other media. But just as laws and regulations distinguish newspaper, magazine and television content from the advertising sold in those media, new policies are required to distinguish the communicative content of video games, virtual worlds and social media from the advertising and commercial purpose activity conducted in those media. Particularly in the area of publicity rights, states and courts have struggled to delineate those contours. This article outlines the emerging contours of …