Digital Commons Network^™

Constructing The Practices Of Accountability And Professionalism: A Comment On In The Interests Of Justice, Susan Sturm

Faculty Scholarship

In the Interests of Justice: Reforming the Legal Profession lives up to its ambitious title. Deborah Rhode comprehensively surveys the structural problems confronting the legal profession, from its subscription to the "sporting theory of justice" to its preoccupation with profit. The book also lays bare the failure of legal education and the professional regulatory system to confront the roots of these structural problems.

I must confess that reading the book felt like a whirlwind tour of the legal profession's inevitable problems. In part, this perception grew out of the sheer range of economic, institutional, and structural factors contributing to the …

The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon

Faculty Scholarship

Literalism is the doctrine that a facially accurate but knowingly deceptive statement does not violate prohibitions of falsehood and misrepresentation. This essay argues that Literalism has had greater legitimacy in professional responsibility than in other areas of law, but that it seems to be in terminal decline. It surveys the arguments for and against Literalism and concludes that its impending demise should be welcomed.

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Faculty Scholarship

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Lawyer Ethics Code Drafting In The Twenty-First Century, Nancy J. Moore

Faculty Scholarship

In 1997, the American Bar Association ("ABA") created the Commission on the Evaluation of the Rules of Professional Conduct otherwise known as the Ethics 2000 Commission ("Commission"). The Commission was charged with conducting a comprehensive review of the Model Rules of Professional Conduct ("Model Rules") to determine what changes were necessary to update the Model Rules and make them relevant to the practice of law in the twenty-first century? In August 2001, the Commission issued a 300-page report recommending numerous changes to the Rules. These recommendations have been considered by the ABA House of Delegates and were largely approved. As …

An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements - Part One, Susan Saab Fortney

Faculty Scholarship

This article considers billing practices, the effects of hourly billing pressure, and firm culture as reflected in a survey of associates in Texas law firms. Part I of this article reports the empirical information from the survey. This information includes insight into the toll an increase in billable hour requirements has taken on legal practitioners and the consequent affect on the legal field. Part II discusses what the data means and how it might be used to improve the outlook for attracting and retaining good associates.

Unreasonable Probability Of Error, Jed Handelsman Shugerman

Faculty Scholarship

In Strickland v. Washington, the Supreme Court sought to create a uniform standard to guarantee effective assistance of counsel to criminal defendants, to "ensure a fair trial," and to assure the reliability of "a just result."' Justice O'Connor's majority opinion created a two-pronged test for overturning a trial verdict: deficient performance and resulting prejudice. The Court explicitly established a difficult burden for proving deficient performance,² but set a moderate standard for prejudice as the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient …

When A Clinician Grew In Brooklyn: A Tribute To Kathleen Sullivan, Minna J. Kotkin, Stacy Caplow

Faculty Scholarship

No abstract provided.

Mary Joe Frug's Postmodern Feminist Legal Manifesto Ten Tears Later: Reflections On The State Of Feminism Today, Elizabeth M. Schneider, Regina Austin

Faculty Scholarship

No abstract provided.

When A Clinician Grew In Brooklyn: A Tribute To Kathleen Sullivan, Stacy Caplow, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Trusting And Non-Trusting On The Internet, Tamar Frankel

Faculty Scholarship

The Puzzle: The Internet is a wonderful innovation, allowing people around the world to communicate, trade, and obtain services. Convenient and rich in choices and opportunities, the Internet is tremendously attractive to buyers. Naturally, businesses are flocking to the Internet. The warning has been sounded that those who do not stake a claim in this incredible new communication medium will be left behind to perish. Yet, with all the enthusiasm, many buyers hesitate to take a serious plunge. Businesses are told repeatedly that they must obtain their customers' trust, yet find it more difficult to gain this trust in cyberspace …

Taking Democracy Seriously, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Is It Educational Malpractice Not To Teach Comparative Legal Ethics?, Susan Saab Fortney

Faculty Scholarship

This article addresses the importance of teaching legal ethics in law schools. After a brief introduction, this article outlines several reasons why it is necessary to have formal ethical training in law schools. The article then explains the different methods of teaching legal ethics that are utilized in the United States. The article also details why it is important and how to teaching comparative legal ethics in law schools due to increased globalization. The article concludes by identifying sources, such as the internet, for teaching comparative legal ethics.

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Faculty Scholarship

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …

Secondary Effects Of Environmental Justice Litigation: The Case Of West Dallas Coalition For Environmental Justice V. Epa, Gregg P. Macey, Lawrence E. Susskind

Faculty Scholarship

No abstract provided.

The Revolution In Military Legal Affairs : Air Force Legal Professionals In 21 St Century Conflicts, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Recalling Atticus Finch: Conversations With Practicing Lawyers, Deborah A. Schmedemann

Faculty Scholarship

This article discusses the skills, values, and attitudes that are key to practicing law. Input from practicing attorneys shows that while some traits are essential for all practice areas, other traits are specifically necessary for certain types of attorneys.

The Storm Arrives: The First Amendment Cases In The Supreme Court's 1999-2000 Term, Joel Gora

Faculty Scholarship

No abstract provided.

Lawyers As America's Governing Class: The Formation And Dissolution Of The Original Understanding Of The American Lawyer's Role, Russell G. Pearce

Faculty Scholarship

No abstract provided.

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …

Reflections On The Ethics Of Legal Academics: Law Schools As Mdps; Or, Should Law Professors Practice What They Teach Symposium: Ethics Of Law Professors, Bruce A. Green

Faculty Scholarship

[A member of the House of Commons said in Samuel Johnson's presence] that he paid no regard to the arguments of counsel at the bar of the House of Commons, because they were paid for speaking. JOHNSON. 'Nay, Sir, argument is argument. You cannot help paying regard to their arguments, if they are good, If it were testimony, you might disregard it, if you knew that it were purchased. There is a beautiful image in Bacon upon this subject: testimony is like an arrow shot from a long bow; the force of it depends on the hand that draws it. …

Outing The Madman: Fair Housing For The Mentally Handicapped And Their Right To Privacy Versus The Landlord's Duty To Warn And Protect, Frederic White

Faculty Scholarship

Over the past fifty years, America has steadily deinstitutionalized its mentally handicapped population, often with mixed results. The primary goal of this process was to place these long-forgotten people back into the so-called mainstream of American life, allowing them access to the same kinds of advantages schools, jobs, housing-that most of us take for granted. This road has not always been easy. In particular, providing safe and accessible housing for the mentally handicapped is an important step toward establishing meaningful self-sufficiency for these individuals. However, to ensure that the needs of all tenants are fulfilled, several potential conflicts between the …

The Political Economy Of Canada's "Widely Held" Rule For Large Banks, Eric J. Gouvin

Faculty Scholarship

All of the recent changes in foreign access to Canada's banking market have been essentially cosmetic-appearing to make foreign access more liberal while in reality changing the status quo very little. On one point, the so-called widely held rule, Canada does not even bother to pretend that its banking law is friendly to foreign entrants. Under this rule, no person or group may control ten percent or more of a Schedule I bank unless one first obtains the approval of the Minster of Finance. This rule makes foreign acquisition of a Schedule I bank virtually impossible. The widely held rule …

The Calm After The Storm: First Amendment Cases In The Supreme Court's 2000-2001 Term, Joel Gora

Faculty Scholarship

No abstract provided.

Learning Through Service In A Clinical Setting: The Effect Of Specialization On Social Justice & Skills Training, Antoinette M. Sedillo Lopez

Faculty Scholarship

Arguing against the trend toward specialization in clinical legal education, this essay addresses potential limitations of specialized legal clinics in furthering the dual mission of clinical legal education: social justice and skills training. It points out that specialized clinics limit access to justice by leaving the myriad needs of clients partially unmet. They limit students' learning about the complex needs of clients and students' ability to discover broad inequities in the legal system. Specialization makes it more difficult to train students to be creative problem solvers, and affects their professional socialization

The Secondary Effects Of Environmental Justice Litigation: The Case Of West Dallas Coalition For Environmental Justice V. Epa, Gregg P. Macey, Lawrence E. Susskind

Faculty Scholarship

No abstract provided.

Thoughts About Corporate Lawyers After Reading The Cigarette Papers: Has The "Wise Counselor" Given Way To The "Hired Gun"?", Bruce A. Green

Faculty Scholarship

No abstract provided.

Lawyer And Public Service, The Historical Perspectives On Pro Bono Lawyering, Russell G. Pearce

Faculty Scholarship

Historically, the first way of viewing the lawyer's role was as a member of America's governing class. Second came cause lawyering on behalf of a particular issue. Third, and most recently, arose the idea of pro bono lawyering, a less ambitious incarnation of the governing class lawyer who contributes time to helping cause lawyers. These categories are not rigid: for each individual they may overlap to one degree or another. This framework is preliminary and requires further research and development. Nonetheless, it provides a useful tool for explaining how lawyers-and in particular the heroic lawyers described in this symposium-connect to …

Shopping For Legal Services Online, Pat Newcombe

Faculty Scholarship

This Article provides information about a new method to shop for legal services, reinventing the way potential clients connect with attorneys. Several dot-coms manage the transaction in which clients purchase legal services through the Internet, providing a venue for businesses and individuals seeking legal services and attorneys interested in representing them. Every year tens of millions of small businesses and individuals are looking for a good attorney. But, for many consumers, the process of selecting a lawyer is a confusing and daunting task. The result, the American Bar Association ("ABA") says, has been a troubling disconnect between the legal profession …

Litigation Governance: A Gentle Critique Of The Third Circuit Task Force Report, John C. Coffee Jr.

Faculty Scholarship

The Third Circuit Task Force on the Selection of Class Counsel (the "Task Force") has worked hard, considered everything, and exhaustively summarized the problems associated with class counsel auctions. Its views will undoubtedly resonate with most of the Bench and the vast majority of the Bar-neither of whom were enthusiastic about the prospect of auctions in the first place. Personally, I agree with the Task Force that auctions are not the most promising reform and that they may exacerbate, rather than correct, existing problems. Still, what is missing from the Task Force Report is the candid recognition that the agency …

Joel Feinberg On Crime And Punishment: Exploring The Relationship Between The Moral Limits Of The Criminal Law And The Expressive Function Of Punishment, Bernard Harcourt

Faculty Scholarship

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest inexpressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg's essay. As Carol Steiker observes, "Joel Feinberg can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay, The …