Digital Commons Network^™

Voicing Differences (Comment), Margaret E. Montoya

Faculty Scholarship

Jane Aiken and Kimberly O'Leary undertake the difficult work of developing specific approaches and techniques for taking account of characteristics such as race/ethnicity, gender, dis/ability, and sexual identity in clinical pedagogy. Carolyn Grose uses outsider narratives and popular culture to challenge the "pre-understanding" of students, and to assist them to accept client stories as true and valid. Focusing on the professional value of striving to promote justice, fairness, and morality identified in the MacCrate Report, Professor Aiken exhorts us to promote justice by unmasking privilege, the invisible package of unearned assets--about which I (we? or you?) was "meant" to remain …

Ethics, Professionalism, And Meaningful Work, William H. Simon

Faculty Scholarship

Much of the anxiety and dissatisfaction associated with legal ethics arises from the categorical quality of the bar's dominant norms. These norms take the form of relatively inflexible rules insensitive to all but a few of the circumstances of the cases they govern. Hence they often require the lawyer to take actions that contribute to injustice or to refrain from actions that would avert injustice.

For example, many lawyers believe that a criminal defender is obliged to impeach a truthful complaining witness even though the only immediate purpose of this tactic is to encourage the trier to draw a mistaken …

Recent Legislation: Constitutional Law – Congress Imposes New Restrictions On Use Of Funds By The Legal Services Corporation – Omnibus Consolidated Rescissions And Appropriations Act Of 1996, Pub. L. No. 104-134, 110 Stat. 1321, Benjamin L. Liebman

Faculty Scholarship

Fierce political battles have raged about the Legal Services Corporation (LSC) for much of its twenty-three year history. Critics have attacked LSC for pursuing a "radical agenda" and for "engaging in dubious litigation that is of no real benefit to poor people," while supporters have termed LSC "the one program in the entire war on poverty that made a difference" and have decried the "campaign to deny the right of legal representation to the poor." Last year, in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (OCRAA), Congress reduced LSC funding by thirty percent – to $278 million in …

Deregulatory Takings, Breach Of The Regulatory Contract, And The Telecommunications Act Of 1996, William J. Baumol, Thomas W. Merrill

Faculty Scholarship

Professors Baumol and Merrill reply to Deregulatory Takings and Breach of the Regulatory Contract, published last year in this Review, which argued that the price incumbents may charge potential competitors for bottleneck facilities under the Telecommunications Act of 1996 should be based not on forward-looking costs but on historical costs. Professors Baumol and Merrill contend that pricing with reference to historical costs would depart from the principles called for by economic analysis for efficient pricing and they further argue that neither the Takings Clause nor the regulatory contract precludes the use of forward-looking costs in setting prices. If a taking …

Indemnity Of Legal Fees, Avery W. Katz

Faculty Scholarship

This article surveys the effects of legal fee shifting on a variety of decisions arising before and during the litigation process. Section 2 provides a brief survey of the practical situations in which legal fee shifting does and does not arise. Section 3 analyzes the effects of indemnification on the incentives to expend resources in litigated cases. Section 4 examines how indemnification influences the decisions to bring and to defend against suit, and Section 5 assesses its effects on the choice between settlement and trial. Section 6 addresses the interaction between the allocation of legal fees and the parties' incentives …

Internet Entrepreneurs, New Traffic Patterns, And Policy Issues, Michael S. Baram, Marv Goldschmitt, Richard J. Testa, Thomas C. Siekman, Peter Marx, Steven Bauer

Faculty Scholarship

Welcome to the first session of the Internet Law Symposium co-sponsored by the Center for Law and Technologyat Boston University School of Law and the law firm of Testa, Hurwitz & Thibeault.This session will focus on a variety of Internet law and public policy issues and their implications for business.

Symbolic Statutes And Real Laws: The Pathologies Of The Anti-Terrorism And Effective Death Penalty Act And The Prison Litigation Reform Act, Larry Yackle

Faculty Scholarship

Criminals are not popular. No politician in recent memory has lost an election for being too tough on crime. In 1996, the Republican Congress and the Democratic President collaborated on two major statutes affecting the legal protections available to criminals The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) modifies the habeas corpus statute in a number of ways, affecting the disposition of federal post-conviction challenges to all criminal convictions, not just those resulting in death sentences? The Prison Litigation Reform Act (PLRA) addresses lawsuits filed by prisoners challenging the conditions of their confinement. The PLRA covers both suits …

Are Law Firm Partners Islands Unto Themselves? An Empirical Study Of Law Firm Peer Review And Culture, Susan Saab Fortney

Faculty Scholarship

This article examines how attitude and law firm culture affect peer review and principal accountability by using empirical data obtained from a survey of Texas law firms. Part I briefly describes the research design and the general profiles of respondents of the survey. Part II discusses the peer review measures used by the firms surveyed for this article. Part III analyzes attitudes about peer review. Part IV focuses on the obstacles to peer review. Part V considers the connection between firm culture and the implementation of peer review measures. Finally, the conclusion explains how firm managers can reshape attitudes to …

Service Is Our Raison D'Etre, Winnie F. Taylor

Faculty Scholarship

No abstract provided.

A Year In Practice: The Journal Of A Reflective Clinician, Stacy Caplow

Faculty Scholarship

No abstract provided.

Rules, Story And Commitment In The Teaching Of Legal Ethics, Roger C. Cramton, Susan P. Koniak

Faculty Scholarship

The ABA requires each "approved" law school to provide each student "instruction in the duties and responsibilities of the legal profession." First adopted in August, 1973, in the midst of the Watergate disclosures, this requirement has never been interpreted and is infrequently referred to or enforced in the accreditation process. The professional responsibility requirement is the only substantive teaching requirement imposed by the ABA.

Should the ethics teaching requirement be scrapped? We consider that question in Part I. Although we ultimately conclude the rule should be maintained, we believe this fundamental question must be asked. Given the disdain many legal …

A Championship Season For The First Amendment, Joel Gora

Faculty Scholarship

No abstract provided.

Field Placement Programs: Practices, Problems And Possibilities, Robert F. Seibel, Linda H. Morton

Faculty Scholarship

This article presents empirical data on externship programs in hopes of creating a nationwide clearinghouse for those engaging in and evaluating such programs. The authors analyze the implications of their data, both to better understand and support the pedagogical value of externship programs, as well as to evaluate the effect of the more recent ABA regulations imposed on these programs.

The Roles Of The State And The Market In Establishing Property Rights, Andrzej Rapaczynski

Faculty Scholarship

Using the experiences of Eastern Europe as an example, this article argues that, contrary to the economists' assumption that property rights are a precondition of a market economy, market institutions are often a prerequisite for a viable private property regime. Progress in the development of complex property rights in Eastern Europe, thus, cannot be expected to come primarily from a perfection of the legal system. Instead, it is more likely to arise as a market response to the demand for property rights. Indeed, legal entitlements can only be expected to become effective against a background of self-enforcing market mechanisms.

"Weightier Than A Mountain": Duty, Hierarchy, And The Consumer In Japan, Anita Bernstein, Paul Fleming

Faculty Scholarship

No abstract provided.

Union Lawyer's Obligations To Bargaining Unit Members: A Case Study Of The Interdependence Of Legal Ethics And Substantive Law, The Symposium: The Lawyer's Duties And Liabilities To Third Parties, Russell G. Pearce

Faculty Scholarship

One of the largest groups of purported nonclients to whom lawyers might have obligations are members of bargaining units represented by unions. Despite the much publicized decline of labor unions, they have almost 16.4 million members. In addition, many workers are members of bargaining units represented by labor unions, but are not union members. The relationship of union lawyers to these millions of bargaining unit members, whether members of the union or not, is unclear. An examination of how this relationship influences and is influenced by labor law offers a fascinating case study of the synergy between the substantive law …

Introductory Remarks Of Panel Ii: Legal, Medical, And Ethical Considerations For The Future Of Physician-Assisted Suicice Symposium: Physician-Assusted Suicide: Legal Rights In Life And Death: Introductory Remarks Of Panel Ii: Legal, Medicial, And Ethical Considerations For The Future Of Physician-Assisted Suicide, Tanya K. Hernandez

Faculty Scholarship

Once the Supreme Court issues it decision in the cases of Quill v. Vacco1 and Compassion in Dying v. Washington2 regarding the constitutionality of outlawing physician-assisted suicide for competent and terminally ill persons, the tension surrounding legal, medical, religious and ethical issues concerning end of life decision making will not be resolved.

The Violence Against Women Act Project: Teaching A New Generation Of Public Interest Lawyers, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Regulatory Cooperation Between The European Commission And U.S. Administrative Agencies, George Bermann

Faculty Scholarship

This Article examines the policies and practices of the European Commission toward various forms of bilateral regulatory cooperation with administrative agencies of the United States. To place this Article's findings in a proper perspective, it is essential to understand both (A) the selection of the European Community (E.C.) as an appropriate overseas regulatory jurisdiction for such cooperation and (B) the reasons for focusing on the European Commission among the various E.C. institutions. Those questions are taken up in this Introduction. Part I describes in some detail the organization and functioning of the Commission. Part II – the core of this …

Comment On Moliterno, Legal Education, Experiential Education, And Professional Responsibility, Lance Liebman

Faculty Scholarship

In attempting to predict and prescribe the future, my vision of the recent history of legal education differs from Professor Moliterno's in certain relevant ways.

I graduated from Law School in 1967. I learned largely through doctrinal courses that delivered steady training in thinking like a lawyer and information about areas of law. These courses exposed me and my classmates to legal lingo and to the standard types of legal arguments. We learned, largely by hearing the teacher and our fellow students, to make verbal moves and to see the strengths and limitations of others' argumentation skills and techniques. We …

Cooperating Defendants: The Costs And Benefits Of Purchasing Information From Scoundrels, Daniel Richman

Faculty Scholarship

Only the most unreflective prosecutor can avoid feeling ambivalent about cooperation. Without the assistance of defendants willing to trade testimony for the expectation of sentencing discounts, many cases worth prosecuting could not be made. But if a prosecutor maintains any distance from these defendants – as he must – he is bound to be troubled by the magnitude of the discounts that the federal system (like other systems) gives to cooperators, many of whom rank as some of the most odious people he has ever met.

The idea of purchasing testimony through sentencing discounts has a long history, of course, …

Class Action Against Class Counsel, Susan P. Koniak

Faculty Scholarship

These remarks are based on a paper that I wrote with Professor George Cohen of the University of Virginia Law School, which is entitled, "Under Cloak of Settlement."' What we mean by that is that in the class action settlement process some illegal cesspool-like activity is occurring. We believe some lawyers are committing fraud, committing gross malpractice, committing violations of the antitrust laws, and that this behavior is going unregulated, unpunished and unchecked by law

Who Should Regulate The Ethics Of Federal Prosecutors?, Rory K. Little

Faculty Scholarship

No abstract provided.

Am I My Partner's Keeper? Peer Review In Law Firms, Susan Saab Fortney

Faculty Scholarship

This article explores the concept of peer review in the practice of law. The article begins with an introduction to law partners’ liability exposure for the acts or omissions of their law partners. The article explains how this exposure has traditionally been approached as vicarious liability and how the government is attempting to transform these issues into direct liability by using failure to monitor claims. Part I briefly reviews perspectives on the emergence, growth, and structure of law firms, then uses a matrix to show how firm culture and organizational structure affect internal and external controls on attorney conduct. Part …

Mandatory Prelicensure Legal Internship: A Renewed Plea For Its Implementation In Light Of The Maccrate Report, Stephen R. Alton

Faculty Scholarship

Since its publication in 1992, virtually everyone who has any opinion about American legal education has been talking about the Mac- Crate Report. Relatively few among this multitude seem actually to have read the report itself. The purpose of this essay is to present an overview of this thoughtful document, along with some thoughts of my own regarding its implications for the future of legal education, particularly its implications for a mandatory prelicensure legal internship.

Catholic Legal Education At The Edge Of A New Millennium: Do We Still Have The Spirit To Send Forth Saints?, Randy Lee

Faculty Scholarship

No abstract provided.

Epilogue: Making Reconceptualization Of Violence Against Women Real, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Law School Training Of American Indians As Legal-Warriors, Gloria Valencia-Weber

Faculty Scholarship

This article explores four areas involved in training lawyers appropriate to the needs of tribal nations. First, the American Indian tribes, as the indigenous sovereigns, present legal needs and opportunities unique from other minority groups. Development of Indian law depends on the exercise of sovereign power by the Indian nations, not constitutional equal protection of an ethnic minority. The architectural work of developing the governments, i.e., creating tribal law and operating tribal courts, calls for the legal-warrior's critical ability to meld customary perspectives with knowledge and skills acquired in legal professional training. Second, the specialty of American Indian law as …

Contextualizing Professional Responsibility: A New Curriculum For A New Century Teaching Legal Ethics: Iv. Developing Specialized Ethics Courses, Mary C. Daly, Bruce A. Green, Russell G. Pearce

Faculty Scholarship

The teaching of professional responsibility in U.S. law schools is entering a new age. A relative newcomer to the traditional curriculum, professional responsibility has struggled over the past twenty-one years to establish its intellectual legitimacy. It has evolved from a cramped course on the codes of lawyer conduct adopted by the American Bar Association ("ABA") to an expansive course on the law of lawyering. The premise of this essay is that professional responsibility has matured as a subject matter to the point where a new genre of courses should join the pervasive method and the traditional survey course. The richness …

Taking Private Ordering Seriously, Avery W. Katz

Faculty Scholarship

In recent years, the rules and practices of private groups have attracted substantial attention within the field of law and economics. In applications ranging from Robert Ellickson's seminal work on rancher/farmer relations in Shasta County, California, to Lisa Bernstein's investigation of extralegal contractual relations among wholesale diamond traders, to Robert Cooter's study of aboriginal customs in Papua New Guinea, to Robert Scott and Alan Schwartz's analysis of the rulemaking procedures of the American Law Institute, an increasing number of legal and economic scholars have shown how private systems of rules work to regulate economic relations among the communities that adopt …