Digital Commons Network^™

Lawyering In The State Of Nature: Instinct And Automaticity In Legal Problem Solving , Ian Weinstein

Faculty Scholarship

This article explains why lawyers do not think or talk like other people, how they got this way, and why this is both a good thing and a bad thing. I have watched hundreds of law students leave their old ways of thinking and talking behind and begin to sound like lawyers. One marker of the progress from lay person to lawyer is the emergence of the ability to tell a coherent fact and law story about a new legal problem. I have sometimes celebrated this professional progress and sometimes lamented the loss of common sense, but my lawyerly analysis …

Regarding Rights: An Essay Honoring The Fiftieth Anniversary Of The Universal Declaration Of Human Rights Introduction: Locating Culture, Identity, And Human Rights Symposium In Celebration Of The Fiftieth Anniversary Of The Universal Declaration Of Human Rights, Tracy E. Higgins

Faculty Scholarship

The half-century since the drafting of the Universal Declaration of Human Rights' has been famously heralded as the "Age of Rights" and the concept of human rights described as "the only political-moral idea that has gained universal acceptance." During the same period, however, both terms defining the subject-human and rights-have become increasingly contested. Informed by the emergence of identity-based political movements, critics have attacked the category human has as bearing the baggage of Western Enlightenment assumptions about personhood and community, inherently racist, sexist, and classist. Theorists across the political spectrum have criticized the concept of rights as indeterminate, destructive of …

Quo Vadis, Posadas?, William W. Van Alstyne

Faculty Scholarship

This examination looks at Virginia's ban on speech advertising motorcycles and revisits the question raised in the Posadas decision - may a state ban speech about a legal product the state could ban if it so desired. This article uses comparisons to the government employee speech cases to further illuminate the issue.

European Economic And Monetary Union: Will The Emu Ever Fly The Euro: A New Single Currency For Europe: Legal Framework, Roger J. Goebel

Faculty Scholarship

The title of this article represents a pun, but a pun with a point that responds to the tensions between these dreams of EMU's success and fears of its failure. The emu is a large Australian bird, but, like the better-known ostrich, the emu does not fly. However, it can run very fast. The point is, that during the early stages of planning for the EMU there were some very high-flying aspirations for what it might attain, and what its attainment might mean for the political future of the European Union. Since then, these aspirations have been considerably chilled by …

Compelled Lawyer Representation And The Free Speech Rights Of Attorneys, Leora Harpaz

Faculty Scholarship

This Article examines the Supreme Court's decision in Hurley v. Irish-American and compares it to the decision in Stropnicky v. Nathanson. It then considers whether there are sufficient distinctions between the two cases so as to defeat the First Amendment argument that was successful in Hurley. It concludes that the differences between the two cases are not sufficiently significant from the point of view of the First Amendment and that the application of the state public accommodation statute to a lawyer's ideologically motivated decision not to represent a client violates the First Amendment.

Lawyer Discrimination Against Clients: Outright Rejection--No; Limitations On Issues And Arguments-Yes, Sam Stonefield

Faculty Scholarship

The issue of lawyer discrimination brings new perspectives to traditional topics like the practice of law, the role of the lawyer and the relationship with, and rights of, the client. It forces us to examine the nature of lawyer discretion, the limits of that discretion and the consequences of trying to regulate that discretion. The examinationis a daunting task. This essay offers an approach that attempts to protect both the prohibition against discrimination and the practice of law and to accommodate the tension that necessarily accompanies this effort. It suggests that the best solution is to prohibit lawyers from discriminating …

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

Faculty Scholarship

No abstract provided.

Foreword: Should The Family Be Represented As An Entity?: Reexamining The Family Values Of Legal Ethics, Russell G. Pearce

Faculty Scholarship

No abstract provided.

Banking In North America: The Triumph Of Public Choice Over Public Policy, Eric J. Gouvin

Faculty Scholarship

This Article examines the state of cross-border banking in the NAFTA countries and the question of whether member country banks should be permitted to branch freely throughout North America. Under present law, the United States permits foreign banks to branch into its territory subject to extensive restrictions, Canada has indicated that it plans to eliminate some restrictions on foreign branching, and Mexico continues to permit access to its banking markets only by investment in or establishment of an institution chartered in Mexico. Article 1403(3) of the NAFTA left the issue of cross-border branching open to subsequent negotiation. If the decision …

Learning From The Unpleasant Truths Of Interfaith Conversations: William Stringfellow's Lessons For The Jewish Lawyer, Russell G. Pearce

Faculty Scholarship

As the religious lawyering movement expands, so too will the opportunities for interfaith conversations about lawyering. At the level of superficial pleasantries, these conversations will probably add warm feelings of camraderie but little else. When they advance to deeper levels of intellectual and emotional connection, they offer the potential for developing close friendships, learning significant new insights, and discovering hurtful differences. Only by risking the pain of such conversations can we gain the full benefit of interfaith conversation for enriching our "zest for spiritual living." This essay will employ the writings of William Stringfellow, a Christian lawyer and theologian, to …

A Response To The Video, Charles F. Sabel

Faculty Scholarship

Let me preface my remarks by informing you that I am not a lawyer. That means that there are things I don't get and things that I'll say that you may not grasp immediately, because there are certain assumptions we don't share. To illustrate that, let me just tell you, I don't even get lawyer jokes.

For example, when I saw the movie So Goes A Nation, and Sam Sue says, "Law schools teach basic skills," I didn't realize that was a joke until you all laughed at it. So there are many subtleties of this sort that escape me. …

Comparative Law In The New European Community, George Bermann

Faculty Scholarship

As a member and leader of America's immediate post-war generation of comparative lawyers, Rudolf Schlesinger viewed the then European Economic Community (Community) as an unprecedentedly important arena for the theory and practice of comparative law. He was right in doing so. As we know, the Community initially faced the prospect, among other things, of harmonizing the laws of six continental European countries, representing distinct branches of the European civil law tradition. Then, within a dozen years, the Community expanded to pick up members that stood on the outskirts of the European civil law tradition (Denmark) and squarely within the common …

Lawyers' Identities, Client Selection And The Antidiscrimination Principle: Thoughts On The Sanctioning Of Judith Nathanson, Bruce K. Miller

Faculty Scholarship

The Author discusses how the Massachusetts Commission Against Discrimination might justifiably apply the Public Accommodations Statute to the client selection practices of some, perhaps many, lawyers. But it should leave Judith Nathanson alone. Nathanson's decision to represent only women in divorce cases is protected by the First Amendment, not because she is entitled as a lawyer to indulge whatever biases she chooses in her selection of clients, but because, as a lawyer of integrity who has melded her personal values and professional skills in service to the profession's best ideals, she is entitled to represent her chosen clients as she …

Class Action Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Class struggle has moved to China's courtrooms. Since the passage of China's 1991 Civil Procedure Law (CPL), which explicitly permits class action litigation, multiplaintiff groups have brought suits seeking compensation for harm caused by pollution, false advertising, contract violations, and securities law violations. Although administrative bodies continue to resolve most disputes in China, the increasing prevalence of class actions is one aspect of an explosion in civil litigation over the past decade. Class action litigation has the potential to alter the role courts play in adjudicating disputes, increase access to the courts, and facilitate the independence of the legal profession. …

My Summer Vacation: Reflections On Becoming A Critical Lawyer And Teacher, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

The Legal Regime For Protecting Cultural Property During Armed Conflict, Joshua E. Kastenberg

Faculty Scholarship

This article examines the depth of customary international law – that is the accepted practices and norms of the international community – with respect to cultural property, the 1954 Hague Convention and Additional Protocol One, and Department of Defense and Air Force policy. Section I will discuss the evolution toward a customary development of an international law of war to protect cultural properties. This section also notes the basic principles of the law of armed conflict. Section II examines the terms of the 1954 Hague Convention, and Additional Protocol One to the Geneva Convention. Section II also applies the various …

Seeking Shelter In The Minefield Of Unintended Consequences - The Traps Of Limited Liability Law Firms, Susan Saab Fortney

Faculty Scholarship

This article addresses the overlooked negative consequences of law firms transitioning from a traditional partnership to a limited liability partnership or company. Part I of this article introduces the topic by providing a brief history of the development of LLCs and LLPs and noting the lack of attention given to the detrimental consequences of such firm structures. Part II reviews the forces behind the limited liability movement and the emergence of limited liability law firms. Part III surveys the statutory approaches to limiting vicarious liability in LLCs and LLPs. Part IV then examines possible internal consequences of attorneys’ practicing as …

The Pecos River Controversy- How Did We Get Here?, G. Emlen Hall

Faculty Scholarship

Conference program only.

Learning From Colleagues: A Case Study In The Relationship Between "Academic" And "Ecological" Clinical Legal Education, Robert J. Condlin

Faculty Scholarship

No abstract provided.

Can Poverty Lawyers Play Well With Others? Including Lawyers In Integrated, School-Based Service Delivery Programs, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Campaign Finance Reform: Still Searching Today For A Better Way, Joel Gora

Faculty Scholarship

No abstract provided.

Neighborhood Legal Services As House Counsel To Community-Based Efforts To Achieve Economic Justice: The East Brooklyn Experience, Brian Glick

Faculty Scholarship

No abstract provided.

A Field Trip To Benetton And Beyond: Some Thoughts On Outsider Narrative In A Law School Clinic, Carolyn Grose

Faculty Scholarship

This essay explores the process of teaching students—and ourselves—to listen to and accept different versions of reality. Such exploration results in a proposition that is easy to state but difficult to accomplish: that in order to achieve this goal, we must challenge the students' "common sense”—their sense that they "know" how people act—by offering examples of behaviors that differ from that knowledge, without triggering the very "common sense" we are trying to combat. Toward this end, the first section of the essay presents a hypothetical initial interview with a client, and the student interviewer's reactions to her, which reflect the …

Lawyers As Nonlawyers In Child-Custody And Visitation Cases: Questions From The Legal Ethics Perspective Response, Bruce A. Green

Faculty Scholarship

The Child Advocacy Clinic at Indiana University School of Law-Bloomington ("Indiana Clinic") takes as a premise that, in custody and visitation disputes, children may be best served by lawyers as guardians ad litem, rather than by lawyers qua lawyers, on one hand, or by nonlawyer guardians ad litem, on the other. In contrast, participants in a national conference at Fordham Law School' concluded two years ago that "[a] lawyer appointed or retained to serve a child in a legal proceeding should serve as the child's lawyer." That is, the lawyer should regard the child as a client, not a ward. …

Neighborhood Legal Services As House Counsel To Community-Based Efforts To Achieve Economic Justice: The East Brooklyn Experience, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

A Letter From Appalachia, Deborah A. Schmedemann

Faculty Scholarship

The author describes a sabbatical spent working with the Appalachian Research and Defense Fund of Kentucky and volunteering as an adult literacy tutor. She describes the difficulties that face many people in that area who are in need of legal action and representation, and notes the importance of funding for legal aid for the poor.

Private Actors & (And) Structural Balance: Militia & (And) The Free Rider Problem In Private Provision Of Law, Andrew P. Morriss

Faculty Scholarship

Miners in Montana in the 1860s created "common law," nongovernmental legal institutions which dispensed millions of dollars of public resources to private individuals. Armed Vigilantes rode across the territory administering private justice. They hung twenty-two men, including an elected sheriff and his deputies. Even as Montana finally became a territory in May 1864, "it nevertheless chose still to regard itself as back of beyond, as a remote, independent, and untouchable empire. It resented and continually obstructed, ungratefully, the federal controls which accompanied the blessings of territorial recognition." Such activities were not limited to the early days of the Montana Territory: …

Less Is More: Teaching Legal Ethics In Context Symposium: 1997 W. M. Mikeck Foundation Forum On The Teaching Of Legal Ethics, Bruce A. Green

Faculty Scholarship

We who teach legal ethics employ many of the teacher's arts to win our students' appreciation for the course. We do not always succeed. As Deborah Rhode has observed, "[t]here are inherent problems and infinite ways to fail in teaching this subject." Yet, we continue to seek a method for teaching the course effectively. If nothing else, our efforts have led to the development of a substantial body of literature on teaching legal ethics to which this Article will contribute. Its focus is on what, rather than how, to teach. This Article asks: What should be the content of the …

Achieving Full Effectiveness Of Community Law: The Court Of Justice's Third Stage Of Enforcement Rules Implementation, Compliance And Effectiveness: Emerging Issues On Compliance And Effectiveness Within The European Union, Roger J. Goebel

Faculty Scholarship

Today we will be considering the experience of the European Union (EU) as a possible model for international law. We will start with Roger J. Goebel, director since 1984 ofthe Center of European Union Law, Fordham Law School.

Inside The Restatement, Aaron Twerski

Faculty Scholarship

No abstract provided.