Digital Commons Network^™

Accountants' Independence The Recent Dilemma, Tamar Frankel

Faculty Scholarship

A fundamental issue has been raised recently in connection with the status of "independent accountants." The issue involves a new breed of a few very large accounting firms. These firms are engaged in global commerce and finance, and cater to an important segment of multinational corporations.

These mammoth accounting firms raise a familiar question in a new context. On the one hand, the size and diversity of the firms meet the needs of large multinational clients and offer efficiency benefits. On the other hand, these benefits expose the firms to increased possible conflicts of interest and endanger the firms' gatekeeping …

Foreword: The Future Of The Profession, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Enlarging The Administrative Polity: Administrative Law And The Changing Definition Of Pluralism, 1945-1970, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer

Faculty Scholarship

As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of …

Brief Of Intervenor, Women’S Legal Education And Action Fund (Leaf), M.V.H., Laura Spitz

Faculty Scholarship

LEAF submits that the heterosexual definition of spouse ins. 29 of the Family Law Act R. S.O. 1990 c. F .3 completely denies lesbians who otherwise meet the tl:1reshoid criteria to apply for a support award. The effect of this denial violates lesbians' right to equal benefit and protection of the law contrary to s. 15(1) of the Charter, and cannot be justified under s.1 of the Charter.

Comments On Rooker-Feldman Or Let State Law Be Our Guide, Jack M. Beermann

Faculty Scholarship

I feel privileged to have been asked to be a commentator on the three principal papers in this symposium. These are three excellent papers, and although there has been some valuable commentary on the Rooker-Feldman doctrine, there will be no need to go beyond these papers to gain a full appreciation of the doctrine, its applications, and its problems, which run as deep as the problems of any doctrine.

Religion And The Public Defender, Sadiq Reza

Faculty Scholarship

This Essay will argue that the public defender, or any other attorney appointed by the court to defend adults or juveniles charged with criminal offenses, should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional imperatives, except in the rare case of imminent death or serious bodily harm to another. This argument rests on the following four premises: (1) the public defender occupies a unique position in our legal system, and options that may be available to lawyers who serve private …

Physicians As Advocates, William M. Sage

Faculty Scholarship

The principal theme of this Article is that many dimensions of physicians' advocacy in managed care remain to be established, and those dimensions may turn out to be inconsistent with one another or with normative goals for the health care system. Specifically, attempting to map physician behavior onto an advocacy template created for lawyers raises three difficult questions. First, given the undisputed importance of clinical expertise to an efficient health care system, should physicians' primary role be to advocate for causes or to direct the provision of care? Second, would the medical professions' reputation for independent competence withstand the adversarial …

From Property To Personhood: What The Legal System Should Do For Children In Family Violence Cases, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

[On The] Road Back In: Community Lawyering In Indigenous Communities, Christine Zuni Cruz

Faculty Scholarship

The idea of professional success,especially in the elite legal profession, as being closely linked to community or having corresponding value to the community has directly affected my view of individual lawyering. Excerpts reprinted in: Social Justice: Professionals, Communities and Law, 11 (Mahoney, Calmore, Wildman, eds., 2003); Lawyers Ethics and The Pursuit of Social Justice and Ethics 201 (Susan D. Carle, ed., 2005); Clinical Anthology, Readings for Live-Client Clinics, (2d Ed., A.J. Hurder, et al., eds., 2011).

Rationing Justice—What Thomas More Would Say, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Private Amici Curiae And The Supreme Court's 1997-1998 Term Employment Law Jurisprudence, Andrew P. Morriss

Faculty Scholarship

The amicus curiae brief has become a common occurrence in today's legal arena, especially with the proliferation of private interest groups that specialize in numerous topics of political and social interest. The substantial increase in the use of amici briefs, however, has sparked criticism concerning both the costs (in effort and resources) associated with filing these griefs and the persuasive effect (or lack thereof) the briefs have on the Court. Much of this criticism arises from the failure of many interest groups to posit "legal" arguments that apply the facts of a given case to the law. Instead, the amici …

Legal Aid And Public Interest Law In China, Benjamin L. Liebman

Faculty Scholarship

This article describes the evolution of legal aid and public interest law in China and examines its implications for the legal profession and the law in the context of four intertwined developments: first, China's efforts to establish a nationwide system of government-run legal aid centers; second, China's attempt to expand the availability and improve the quality of legal representation for indigent criminal defendants; third, China's bid to force the legal profession to serve poor clients via mandatory pro bono requirements for lawyers; fourth, the development of non-governmental legal aid centers and the expanding incentives for profit-oriented lawyers to take on …

Rethinking Freedom Of Contract: A Bankruptcy Paradigm, Steven L. Schwarcz

Faculty Scholarship

This Article tests the limits of private contracting by examining what it means to contract about bankruptcy. Bankruptcy law if governed by a statutory code that defines the relationship between debtors and creditors when a debtor enters the bankruptcy regulatory scheme. May debtors and creditors contract in advance to change that relationship? Or would these contracts be "Faustian" bargains that the state should not enforce? Both courts and scholars are in conflict, yet the answer is critical because it affects not only bankruptcy costs but also the structuring of corporate reorganizations and securitization transactions. I maintain that the threshold question--what …

Face-Ing The Other: An Ethics Of Encounter And Solidarity In Legal Services Practice, Marie Failinger

Faculty Scholarship

In this article, the author proposes that those who work in any capacity with impoverished clients and embattled minority communities imagine practice from within Levinas' key images. First, that ethics is first philosophy - that knowledge of the self, the Other and the context in which ethical action is possible does not precede ethical understanding, decision-making and action, but that rather that we become human in the ethical encounter with the incommensurable Other. Second, that representing a client is in each moment an encounter with the face of the Other. We look up into the face of the Other calling …

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Faculty Scholarship

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

Buckley V. Valeo: A Landmark Of Political Freedom, Joel Gora

Faculty Scholarship

No abstract provided.

Cautionary Tale From The Multidisciplinary Practice Debate: How The Traditionalists Lost Professionalism, A The Phyllis W. Beck Chair In Law Symposium: New Roles, No Rules - Redefining Lawyers' Work - Redefining Lawyers' Work: Multidisciplinary Practice, Russell G. Pearce, Amelia J. Uelmen:

Faculty Scholarship

The author presents a fictional conversation among Lawrence J. Fox, other noted legal scholars, and himself concerning the ethics and changes in the legal profession.

Lassoing Legal Software, Pat Newcombe

Faculty Scholarship

In Texas, a statute prohibiting the unlicensed practice of law dates back to the Depression. Overseeing this statute is the Unauthorized Practice of Law (UPL) Committee, a state judicial panel formed to investigate and prosecute companies and individuals who practice law without a license. In 1998, the panel brought charges against Iowa-based Parsons Technology Inc., publisher of Quicken Family Lawyer. The committee claimed the software was designed in a manner that crossed the line of practicing without a license. They alleged that the software program, which features Harvard University law professor Arthur Miller guiding users through the steps to produce …

Cross-Border Bank Branching Under The Nafta: Public Choice And The Law Of Corporate Groups, Eric J. Gouvin

Faculty Scholarship

This Article examines a question left unresolved after the negotiation of the North American Free Trade Agreement (NAFTA): whether the banks of the member countries should be permitted to engage in the business of banking in the other member countries simply by branching across national borders. Under present law, the United States permits branching subject to extensive restrictions, while Canada and Mexico permit access to their banking markets only by acquisition or establishment of institutions chartered in their countries. While the NAFTA does not provide for unfettered branching across national borders, article 1403(3) of the NAFTA left the issue of …

Commercial And Corporate Lawyers 'N The Hood, Alfred Dennis Mathewson

Faculty Scholarship

I shall begin the development of this proposition with a theme from a "Last Lecture" I was asked to deliver by the UNM Campus Ministries several years ago. I was asked to pretend that I would die immediately after giving the lecture. I opened the lecture with a story my mother used to tell us about the time she was traveling on Trailways with two of my older brothers, then toddlers. The bus driver asked her to move to the back of the bus. She had not wanted to get up but decided that compliance with the demand was in …

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Faculty Scholarship

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …

Disciplinary Restrictions On Multidisciplinary Practice: Their Derivation, Their Development, And Some Implications For The Core Values Debate The Future Of The Profession: A Symposium On Multidisciplinary Practice, Bruce A. Green

Faculty Scholarship

Many of the legal profession's disciplinary rules are of venerable lineage. For example, the provisions of contemporary disciplinary codes concerning conflicts of interest derive from the 1908 Canons of Professional Ethics (Canons), which, in turn, can be traced back to late nineteenth century state ethics codes, to mid-nineteenth-century lectures and writings, 3 and to earlier common-law agency principles. Although lawyers to- day disagree about what the precise contours of the conflict rules should be, these rules embody basic principles of loyalty, competence and confidentiality that are fundamental, traditional, and universally supported by lawyers. These are defining principles for the practice …

Law Day 2050: Post-Professinalism, Moral Leadership, And The Law-As-Business Paradigm Symposium, Russell G. Pearce

Faculty Scholarship

Inspired by Ted Schneyer's future history of professional discipline' and Bob Gordon's descrption of "the hazy aspirational world" of the "Law Day Sermon,' I offer a vision of the legal profession 'a next fifty years in the form of a Law Day speech from the year 2050. Looking back on developments in the first half of the twenty-first century, this piece explores the implications of the analysis proposed in my earlier article, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar. The speech presents a projection of the moral leadership the bar …

After Legal Aid Is Abolished, Geoffrey C. Hazard, Jr.

Faculty Scholarship

No abstract provided.

A New Thinking About Affirmative Action, Frank H. Wu

Faculty Scholarship

No abstract provided.

Roundtable Discussion: Where Do We Go From Here? Lesbian, Gay, Bisexual And Transgendered Civil Rights Into The Next Millennium, Matt Coles

Faculty Scholarship

No abstract provided.

Review Of Jesse Dukeminier And James E. Krier, Property (4th Edition 1998), Andrew P. Morriss

Faculty Scholarship

Professors Dukeminier and Krier's property casebook is reputed to be the market leader in Property casebooks; I have heard estimates that it has as much as a fifty percent market share. This position is well-deserved-the casebook is thorough, comprehensive, well-written, error free, and, a significant feature for new teachers, has the best teacher's manual I have encountered for any casebook in any subject. IBM once sold computers because "No one ever got fired for choosing IBM." An analogous claim can be made for this casebook-no one ever provoked significant faculty or student unrest by choosing Dukeminier and Krier.

In this …

Creating True Believers: Putting Macro Theory Into Practice, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Slashing And Burning Prisoners Rights: Congress And The Supreme Court In Dialogue, Susan Herman

Faculty Scholarship

No abstract provided.