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Lawyers For The Abused And Lawyers For The Accused: An Interfaith Marriage, Abbe Smith, Ilene Seidman

Georgetown Law Faculty Publications and Other Works

In this article, we will explore what unites lawyers for the abused and lawyers for the accused. In Part II, we will discuss our connection as poverty lawyers concerned about the dignity of individual clients. In Part III, we will discuss our shared commitment to the adversarial system, legal process, and access to justice. In Part IV, we will address the challenge of teaching students who represent victims or perpetrators to be zealous and devoted advocates - but also to care about social and legal injustice on both sides.

Eleventh Amendment Schizophrenia, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article argues that conflicting analytical strains run through the Supreme Court's recent majority opinions in the area of state sovereign immunity. The "supremacy" strain stresses that, despite the Eleventh Amendment, the states remain obligated to comply with federal law, and that the Constitution envisions the "necessary judicial means" to enforce these obligations against the state. These means include suits by the federal government, private suits for injunctive relief, and suits seeking damages from state officials in their individual capacities. Thus, according to the supremacy strain, state sovereign immunity is unimportant because it merely bars unnecessary means of enforcing the …

Imagining Justice, Robin West

Georgetown Law Faculty Publications and Other Works

As we approach the new century and the new millennium, those of us who are legal professionals in liberal capitalist democracies need to drastically improve our practices of law if we are to bring those practices in line with our professed ideals. The commodification and marketing of legal services, for example, combined with a nearly blind commitment to overly combative advocacy, puts legal assistance beyond the means of large segments of the public, severely undercutting our commitment to equality before the law. A different and perhaps harder question, however, is whether the ideals against which we judge our practices are …

“Environmental Racism! That’S What It Is.”, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

In this essay, Professor Lazarus discusses former NAACP director the Rev. Dr. Benjamin Chavis's characterization of U.S. environmental policy as "environmental racism." He first justifies this provocative topic choice and then suggests that Chavis's allegation has transformed environmental law. Professor Lazarus next discusses the details of this transformation, arguing that Rev. Chavis has essentially reshaped the way environmental law and justice are conceived. He offers examples of various environmental programs and social and political effects traceable to Chavis's environmental racism comment. Finally, the conclusion provides some of the author's ruminations about the future of environmental law and policy.

Hard Choices: Thoughts For New Lawyers, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

Rarely do law schools challenge students to examine their assumptions about what being a lawyer really means. Seldom do law schools undertake a probing examination of the role that lawyers play in society and the choices that lawyers have to make in terms of how they spend their working lives. For example, how many of you have a clue about the basic facts of our profession? How many lawyers there are in the United States? What do they do? What percentage work for the government? For large law firms? For small firms? For legal services organizations? For public interest groups? …

Economic Incentives In Representing Publicly-Funded Criminal Defendants In England's Crown Court, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The flux now engulfing the way in which the defenders of indigent criminal defendants are compensated in England's Crown Court provides a sober lesson for U.S. lawyers. Once, U.S. lawyers, who themselves are appointed to represent indigent defendants, could have cited English practice to support a hefty increase in the meager compensation they receive in many jurisdictions. For in balancing the tension between encouraging effective representation, but at bearable social cost, U.S. jurisdictions stress the latter, all but ignoring the former. The English approach, by contrast, has paid generously, at least in serious cases, thereby implicitly recognizing that defenders could …

Dc Consortium Of Legal Service Providers: Legal Services 2000 Symposium, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

My main point is to urge you to the see what is possible in the way of what I might call a public health approach to lawyering for the poor. In a public health approach you find something that has polluted the river and you clean it up at its source instead of just treating its victims one by one. In legal and societal terms, when we are discussing why so many children are growing up poor and dying a slow death of disappointment, the challenge is to think about it in a public health way. Of course we cannot …

When Winning Isn’T Everything: The Lawyer As Problem Solver, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Today I want to address the question of what the modern lawyer needs to know and what the modern lawyer must know how to do to be good at what he or she does, to be helpful to clients, to lead a fulfilling life, and hopefully, to leave the world a better place than he or she first found it. I went to law school to work on that illusive jurisprudential concept - justice. On the outside walls of the Edward Bennett Williams Library where I work in Washington, DC, is a quote, which we attribute to a former Georgetown …

Do The Haves Come Out Ahead In Alternative Justice Systems? Repeat Players In Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Marc Galanter's essay, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change (Why the "Haves" Come out Ahead), published twenty-five years ago, set an important agenda for those who care about the distributive effects of legal processes, including those of us who have been engaged in jurisprudential, intellectual, and empirical debates about the relative advantages and disadvantages of alternative and conventional legal procedures. As a document of legal intellectual history, this Article was formed in the crucible of the Legal Mobilization and Modernization program at Yale Law School that spawned so many "law and . …

Ethics And Professionalism In Non-Adversarial Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Traditional notions and rules of professionalism in the legal profession have been premised on particular conceptions of the lawyer's role, usually as an advocate, occasionally as a counselor, advisor, transaction planner, government official, decision maker and in the recent parlance of one of this symposium's participants-a "statesman [sic]. '" As we examine what professionalism means and what rules should be used to regulate its activity, it is important to ask some foundational questions: For what ends should our profession be used? What does law offer society? How should lawyers exercise their particular skills and competencies?

Faculty Pro Bono And The Question Of Identity, David Luban

Georgetown Law Faculty Publications and Other Works

My aim in this essay is to explain and defend a simple proposition, which I'll call the pro bono thesis: law teachers and law schools have the same pro bono responsibilities as lawyers and law firms. By "pro bono" I mean something more particular than community service or civic involvement. I mean free or reduced-rate legal work for those who cannot afford to pay for it. The pro bono thesis is that law teachers and law schools have pro bono responsibilities in this sense.

Asking The Right Questions, David Luban

Georgetown Law Faculty Publications and Other Works

At this Symposium, we have heard about forms of law practice that raise large questions about the lawyer's role. My sole theme in the present essay is that we often ask the wrong large questions. Too often, the questions about multidisciplinary practice ("MDP"), mediation and arbitration, and in-house lawyering are whether they are good for lawyers and good for clients. These are questions, I will suggest, that the market itself will decide. The right question is not whether new roles with no rules are good for lawyers and clients, but rather whether they are good for the rest of us-"us" …

Unaccompanied Children In I.N.S. Detention, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

It is important to note that children who end up in INS detention centers in the United States are not criminal detainees, but rather, administrative detainees. That is, they are not being held because they are accused or convicted of crimes. They are being held for two reasons only. First, the INS holds them in order to ensure their presence at immigration proceedings. They fear that if they let a child out, into foster care for instance, that child might not appear at any subsequent hearings or proceedings. Second, the government is legally required to look after these children in …

Toward A Theory Of Reciprocal Responsibility Between Clients And Lawyers: A Comment On David Wilkins’ Do Clients Have Ethical Obligations To Lawyers? Some Lessons From The Diversity Wars, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

On my plane flight to attend the American Association of Law Schools meeting at which Professor David Wilkins presented his paper, Do Clients Have Ethical Obligations to Lawyers? Some Lessons From the Diversity Wars, the pilot requested passengers to "assist the flight attendants in their principal duty of providing safety to all passengers," following a recent incident with mid-flight turbulence in which one person died and several were injured. The pilot reminded us that "service" was only a secondary function of the flight attendants, with their principal duty being to ensure that all of us traveled and arrived safely, …

What Trina Taught Me: Reflections On Mediation, Inequality, Teaching And Life, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Trina Grillo and I trained together as mediators, met together as law teachers, commiserated together as women and civil rights activists, and laughed and cried together as friends. I shall miss her wise counsel, her sensible judgment, her measured indignation, her gentleness and her razor sharp perceptions about the world, across, through and with her gender, race, class, and human identities. I shall miss her words, her presence, her body, her corporeal essence, but she will always be with me and my students in her spirit and through her contributions to our work. In this Essay I want to reflect …

Dedicatory Essay: Honoring Ian Mccoll Kennedy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Ian Kennedy is perhaps the best known and most important figure in health law and ethics in the United Kingdom, and probably one of the most significant in Europe and North America. How did his life and career evolve to the point where he would wield such influence? This essay examines the leadership, erudition, and passion Ian Kennedy has brought to the field of health law and ethics. It is perhaps not an overstatement to suggest that Professor Kennedy virtually invented the field in the United Kingdom. He did so through his scholarship, public advocacy, and influence in shaping institutions, …

Lawyering For Social Justice, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

It is an honor, albeit a sad one, to be invited to write this Essay in commemoration of Tom Stoddard and as commentary on his final publication.

I first met Tom in the late 1970s, when we both joined the Board of Directors of the Lambda Legal Defense and Education Fund. Both of us were American Civil Liberties Union staff attorneys, Tom for the New York Civil Liberties Union (NYCLU) and I for the Reproducfive Freedom Project in the national office. Later, for the last half of the 1980s, Tom was the Executive Director of Lambda during the same period …

Ethics In Alternative Dispute Resolution: New Issues, No Answers From The Adversary Conception Of Lawyers’ Responsibilities, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The romantic days of ADR appear to be over. To the extent that proponents of ADR, like myself, were attracted to it because of its promise of flexibility, adaptability, and creativity, we now see the need for ethics, standards of practice and rules as potentially limiting and containing the promise of alternatives to rigid adversarial modes of dispute resolution. It is almost as if we thought that anyone who would engage in ADR must of necessity be a moral, good, creative, and, of course, ethical person. That we are here today is deeply ironic and yet, also necessary, as "appropriate" …

Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I begin by thanking the UCLA Law Review, and particularly Darrin Mollet and Bryce Johnson, for seeing the timeliness of the topic of alternative dispute resolution and organizing this Symposium-collecting some of the best thinkers, writers, and practitioners in the field to discuss, among other things, the economics of ADR, the role of lawyers, courts, and judges in ADR, and the application of ADR to a variety of substantive legal and regulatory problems. In this Introduction, I would like to introduce the topics and the authors, and put them in the larger context of the movement that is now called …

The Silences Of The Restatement Of The Law Governing Lawyers: Lawyering As Only Adversary Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The attempt to "restate" the law governing lawyers is a noble effort. The drafts, to date, have presented a heroic gathering, in one place, of case law and competing formulations of a variety of the professional disciplinary codes. The drafters have attempted to settle some difficult and often contentious issues regarding lawyer responsibilities to clients, to courts, to third parties, and to themselves. At the same time, this Restatement suffers from the temporal flaws of all its sisters and brothers - in its efforts to "restate" the law it looks backward, not forward, and thus will provide little guidance, at …

Striving To Teach “Justice, Fairness, And Morality”, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

The MacCrate Report has reinvigorated legal education by identifying fundamental skills and values that are essential to effective lawyering. As we go through the process of ensuring that we train students in these fundamentals, we should not ignore the values identified in the report. At the heart of these values is the injunction that lawyers should strive to promote justice, fairness, and morality. Law schools and law teachers can play a significant role in instilling in our students a passion to ensure justice.

The Organizational Client: Attorney-Client Privilege And The No-Contract Rule, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

A basic issue in the law governing lawyers is the identification of an attorney's client. Various duties, obligations, and rights arise from the attorney-client relationship. In the case of the individual who is a client, the answer is relatively easy. But in the case of the organizational client, the issue becomes more complex and the answers still are evolving. Indeed, the answer may differ depending on the legal context in which the question is asked and on the individual values being served.

Constructing A Clinic, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

The author addresses some basic structural questions that the clinic's supervisor or supervisors might think about when beginning to design or renovate a program. These include the goals of the proposed clinic; the number and qualifications of its teaching and support staff; the desired relationships among staff members; the subject matter of the clinic's cases; the duration of the clinic, the amount of course credit that students should receive for taking it, and the caseload per student; the grading system; the relationships between the students and the tribunals or other fora in which they will be practicing; how the clinic …

Don’T Gut Political Asylum, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

For many years, the United States has granted political asylum to victims of persecution who come to our country and seek our protection. Now, however, Congress is on the verge of abolishing the right of political asylum.

Congress is not proposing to repeal the asylum provisions of the Refugee Act of 1980. An outright repeal would probably never pass, because many in Congress, recalling America's sorry treatment of refugees during the Holocaust, accept the humanitarian premises underlying asylum. Rather, the abolition is in the form of a new, apparently innocuous "procedural" requirement. The House Judiciary Committee recently adopted, as an …

Environmental Justice Clinics: Visible Models Of Justice, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article examines and evaluates the contributions of environmental justice law clinics to pedagogy, law reform and legal services. The author bases her observations and conclusions on her experiences at Georgetown University Law Center where she teaches a course in environmental equity and supervises students in an environmental justice clinic.

Part II summarizes current knowledge about the incidences and causes of environmental inequity and the legal barriers to achieving environmental justice. This discussion highlights the distinctive aspects of environmental justice issues which influence the design of environmental justice clinical programs. Part III presents general information on legal clinical programs and …

Ethics And The Settlement Of Mass Torts: When The Rules Meet The Road, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The settlement of mass torts through the class action device presents some difficult and troubling issues, including important questions of due process, fairness, justice, efficiency, equality, equity, and ethics. In this context, some of these foundational values conflict with each other and must be "resolved" by judges who must decide actual cases. In analyzing the applicable laws and rules (class action rules, constitutional provisions, and ethics rules) we find answers or suggestions that are often ambiguous or contradictory. All of these unresolved ambiguities raise the question of whether mass torts are any different from any number of difficult cases our …

Whose Dispute Is It Anyway? A Philosophical And Democratic Defense Of Settlement (In Some Cases), Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I have often thought myself ill-suited to my chosen profession. I love to argue, but I am often too quick to say both, "yes, I see your point" and concede something to the "other side," and to say of my own arguments, "yes, but, it's not that simple." In short, I have trouble with polarized argument, debate, and the adversarialism that characterizes much of our work. Where others see black and white, I often see not just the "grey" but the purple and red-in short, the complexity of human issues that appear before the law for resolution.

In the last …

Culture Clash In The Quality Of Life In The Law: Changes In The Economics, Diversification And Organization Of Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

There is no question that law practice has changed in recent decades. More lawyers work in larger units or newer forms of practice. Increasing numbers of lawyers come from previously excluded groups, including both women and minority demographic groups. After a period of economic boom there is general economic anxiety about the continued health and growth of the law "industry." This occurs as there is a general "speed up" in American work, the forms of law practice organization and billing for legal work are being renegotiated, and rates of dissatisfaction with the practice of law increase, especially among younger and …

The Word On Trial, Robin West

Georgetown Law Faculty Publications and Other Works

Milner Ball's extraordinary book, The Word and the Law, begins with a narrative account of "seven practices in law." The seven practitioners Ball brings to life for the reader share two powerful traits: they all, in quite different ways, use law to lessen the multiple sufferings of various communities of poor people, and they all, by doing so, strengthen the communities within which and for which they labor. The reader gains from these accounts not only a sympathetic understanding of the lives of seven lawyers, but a renewed sense of the possibilities their practices present. This can be put any …

Legitimating The Illegitimate: A Comment On 'Beyond Rape', Robin West

Georgetown Law Faculty Publications and Other Works

Professor Dripps's provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our "negative" right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory.
  
Furthermore, according to Dripps, …