Digital Commons Network^™

Corporate Masters & Low-Wage Servants: The Social Control Of Workers In Poverty, Nantiya Ruan

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The Article describes and analyzes how the state’s control over low-wage workers has been relegated to private employers. While the state has historically controlled and limited the lives of poor people, today, people in poverty are subjugated through the privatizing of poverty governance by corporate masters who control the lives and shape the behaviors of their low-wage worker servants. The policies of these employers ensures that low-wage work is precarious, unpredictable, and insufficient.

This Article starts an important conversation about how today’s low-wage employers are corporate masters that control their servants through poverty-level pay and precarious positions. Work is scheduled …

The Professional Prospectus: A Call For Effective Professional Disclosure, Benjamin P. Edwards

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Without easy access to relevant information, many consumers unwittingly trust serious decisions to professionals with histories of malpractice and negligence-leading to both individual and societal harms. This Article proposes to improve professional services markets with a tool that has already proven effective in the securities markets: a prospectus. A "Professional Prospectus" would reduce information asymmetries and improve the market for professional services through disclosure and consumer choice.

A Professional Prospectus would alter the market for professional services by making professional reputation a more potent force. Economic theory often relies on "reputation effects" to ensure the efficient functioning of the market …

Beyond Elite Law: Editors' Preface, Joy Radice

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We are justly proud of the American legal system and the lawyers and judges who make it work. Our system, to the envy of much of the world, takes law seriously, aspires to reduce the gap between the law on the books and the law as lived, and strives to subject all within its remit to the rule of law. And yet, it remains, at its core, a system of elite law largely for the elite.

We are all engaged in elite law, whether as lawyers or academics. Each year, the law schools produce eager, bright graduates ready to provide …

Experiencing Experiential Education: A Faculty-Student Perspective On The University Of Tennessee College Of Law's Adventure In Access To Justice Author, Robert C. Blitt

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This article functions both as a brief history lesson in experiential education and as a case study of an experiential course entitled “Human Rights Practicum” offered at the University of Tennessee College of Law in 2015. After briefly discussing historical and current trends in law school reform, including the rise of experiential education within the law school curriculum and the role played by technology in this context, the article turns to explore the impetus for the Human Rights Practicum, its development and implementation, as well as the software technology used to develop its final work product, a web-based “guided interview” …

Four Big Pictures Trends To Watch In A Roiling Market, Benjamin H. Barton

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No abstract provided.

Training Leaders The Very Best Way We Can, Douglas A. Blaze, George Lewis

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No abstract provided.

Attorney’S Fees, Nominal Damages, And Section 1983 Litigation, Thomas A. Eaton, Michael Wells

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Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how …

In Pari Delicto Deconstructed: Dismantling The Doctrine That Protects The Business Entity's Lawyer From Malpractice Liability, Paula Schaefer

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The equitable doctrine in pari delicto provides that a plaintiff who participated equally with a defendant in wrongdoing cannot pursue a claim against the defendant. Courts often describe dual policies underlying the in pari delicto defense: deterrence of illegal conduct and protection of the sanctity of the courts. Lawyers invoke in pari delicto when sued for malpractice for failing to protect a client from legal liability. A common scenario involves a lawyer advising a client to lie under oath; the client follows the advice and suffers damage as a result. When the client sues the lawyer for legal malpractice based …

Access To Justice: What To Do About The Law Of Wills, Iris Goodwin

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No abstract provided.

Some Early Thoughts On Liability Standards For Online Providers Of Legal Services, Benjamin H. Barton

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This Article discusses a classic intersection of law, science, and technology. Just like common law courts adjusted the "mailbox rule" to cover fax machines, courts will have to adjust their existing approach to liability for harmful legal services, given the existence of new providers of legal services online.' The result is a clash of cultures between one of America's most conservative2 institutions-its common law courts-and some of its most aggressively forward looking ones-internet entrepreneurs.

Fresh Approaches To Teaching Transactional Drafting, Joan Macleod Heminway, Richard K. Neumann Jr., Katherine M. Koops

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No abstract provided.

A Comparison Between The American Markets For Medical And Legal Services, Benjamin H. Barton

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America’s access to justice woes are paradoxical in a number of ways. We have more lawyers than every country, except for India, and more lawyers per capita than every country, except for Israel. We spend more on law as an absolute amount or as a percentage of GDP than any other country. At the high end, our so-called “Big Law,” we provide the best and most lucrative services in the world. Yet, we barely provide any legal services to the very poor, and American lawyers cost too much for the working poor or even the middle class. We graduate so …

Mapping Inter-Organizational Boundary Bureaucracy And The Need For Oversight, Bobbi Jo Boyd

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The traditional paradigm of state and federal government envisions a neat separation between the legislative, judicial, and executive branches and between the public and private sectors. The heart of this Article explores the reality that some government agencies - particularly state agencies - have ambiguous and contested branch assignments and blurred hierarchical relationships with the private sector, and even other state agencies. When bureaucratic boundaries are blurred and ambiguous, an agency can become unhinged from laws that mandate transparency and accountability to the public it serves. This Article examines two state agencies -the North Carolina State Bar and the Board …

‘Let’S Change The Law’: Arkansas And The Puzzle Of Juvenile Justice Reform In The 1990s, David S. Tanenhaus, Eric C. Nystrom

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No abstract provided.

From Victims To Litigants, Elizabeth L. Macdowell

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This Article reports findings from an ethnographic study of self-help programs in two western states. The study investigated how self-help assistance provided by partnerships between courts and nongovernmental organizations implicates advocacy and access to justice for domestic violence survivors. The primary finding is that self-help programs may inadvertently work to curtail, rather than expand, advocacy resources. Furthermore, problems identified with self-help service delivery and negative impacts on advocacy systems may be explained by the structure of work within self-help programs and the nature of partnerships to provide self-help services. The Author uncovers previously unseen impacts of self-help programs on survivors …

Best Practices For A State Alzheimer's Disease Registry: Lessons From Georgia, Elizabeth Weeks Leonard, Rui Bu, Amanda Alexandra Brown

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In May 2014, the Georgia General Assembly enacted legislation establishing the Alzheimer’s Disease Registry (“Registry”) in order to generate new data for research and policy planning. The Task Force bill followed similar federal legislation. This state action has not only drawn tremendous attention to the continued prevalence of Alzheimer’s disease among the population of Georgia but also raised a series of questions regarding the practicability, legality, and effectiveness of the Registry. The lessons learned in Georgia, as Registry implementation moves forward, will provide guidance for other states interested in collecting similar data. In Part I of this article we describe …

Ethical Challenges Of Using Law Student Interns/Externs To Expand Services To Low-Income Older Adults, Eleanor Lanier

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No abstract provided.

Taxing Remote Sales In The Digital Age: A Global Perspective, Walter Hellerstein

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This Article addresses three fundamental questions raised by the taxation of remote sales in the digital age from a global perspective, but focuses on the implications, if any, of the answers to these questions in the global context for the U.S. subnational retail sales tax. First, should remote sales be taxed under a consumption tax? Second, if the answer to the first question is “yes,” where should such sales be taxed? Third, how can remote sales be taxed effectively under a consumption tax in the digital age?4

In Defense Of The Devil’S Advocate, Lonnie T. Brown

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mong the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times — titled “Must You Be the Devil’s Advocate?” — in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him …

An Introduction To The Oecd’S International Vat/Gst Guidelines, Walter Hellerstein

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U.S. tax professionals can bene/it by becoming acquainted with the OECD’s new guidelines for the design and implementation of value added tax (VAT) regimes

Complying With The Hipaa Privacy Rule: Problems And Perspectives, Stacey A. Tovino

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Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include a final rule governing the use and disclosure of protected health information by covered entities and their business associates (Privacy Rule).

This Article addresses the question of what it means for …

Writing For A Mind At Work: Appellate Advocacy And The Science Of Digital Reading, Mary Beth Beazley

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Professor Beazley explores the future implications to appellate advocacy as we move into the digital age. Understanding how that digital world affects legal reading is vital to understanding the future of appellate advocacy. Lawyers need to understand some of the science of how people read and interact with the written word; unfortunately, we have been slow to grasp the importance of this science. She defines and explains the concepts of "Active Readers" and "Knowledge Work." She then addresses some of the issues that arise as active readers transition from paper to digital platforms. Professor Beazley concludes by describing some of …

Braking The Rules: Why State Courts Should Not Replicate Amendments To The Federal Rules Of Civil Procedure, Stephen N. Subrin, Thomas O. Main

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We have criticized the amendments to the Federal Rules of Civil Procedure since the 1980s and the procedural changes made by United States Supreme Court decisions during the same period. These amendments and changes, even if subtle and incremental, launched a new era—the Fourth Era in the grand history of American civil procedure. In this era, tragically, litigation is often perceived as a nuisance, trials are a mistake, and judicial case management is a catholicon. In this Article, we turn our attention to state court procedure. States could follow their federal counterparts; indeed, the pursuit of uniformity can be instinctive. …

Reentering Survivors: Invisible At The Intersection Of The Criminal Legal System And The Domestic Violence Movement, Courtney Cross

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Like all returning citizens, women coming home after incarceration face significant challenges to successful reentry. In addition to the collateral consequences of their criminal convictions, reentering women also encounter uniquely gendered obstacles. This Article explores one such obstacle: the relationship between women's reentry and domestic violence. Women on probation or parole who are also experiencing domestic violence too often fall into a blind spot in which the structure of community supervision pressures them to remain in unsafe homes and also punishes them when the abuse they endure interferes with their ability to comply with the conditions of their release. Because …

Domestic Violence And The Politics Of Self-Help, Elizabeth L. Macdowell

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Self-help programs are conceptualized as alternatives to attorney representation that can help both courts and unrepresented litigants. The rhetoric of self-help also typically includes empowering unrepresented individuals to help themselves. But how do self-help programs respond to litigants’ efforts at self-advocacy? This Article reports findings from a study of courthouse self-help programs assisting unrepresented litigants applying for protection orders. The central finding is that self-help staff members were not neutral in the provision of services despite a professed ethic of neutrality. Using the sociological concept of demeanor, this Article shows that staff members rewarded protection order applicants who conformed to …

Crafting Comment Letters: Teach Policy, Develop Skills, And Shape Pending Regulation, Benjamin P. Edwards, Nicole G. Iannarone

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Professor Benjamin Edwards joins his colleague, Professor Nicole Iannarone, in this essay, unpacking the regulatory comment letter process and how to incorporate it into the law school curriculum. Participating in live rulemaking offers unique opportunities for students including mastering the substantive area of law, developing critical thinking skills, and developing their professional identities. The authors describe their own experiences in incorporating students into the regulatory rulemaking process. Because of the focus on securities law, their students review and comment on proposed actions by securities regulators - the Financial Industry Regulatory Authority (FINRA) and Securities and Exchange Commission (SEC). After providing …

Book Review - Middle Income Access To Justice, Benjamin H. Barton

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This is a solicited book review of the excellent Canadian book Middle Income Access to Justice (Michael Trebilcock, Anthony Duggan, & Lorne Sossin, eds., 2012) from the Toronto Law Review.

Toward More Equal Access To Justice: The Tennessee Experience, Douglas A. Blaze, R. Brad Morgan

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No abstract provided.

The Career Path, Education, And Activities Of Academic Law Library Directors Revisited Twenty-Five Years Later, Michael J. Slinger, Sarah C. Slinger

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In conducting this new study, our goal is to provide useful information to the profession and guidance to future law library directors. We also think that by examining the director position we can provide a window into how the profession of academic law librarianship is evolving. Some of the changes we uncovered we see as positive. However, other changes are of concern, including an emerging trend at some institutions to remove full faculty status from the director. This is alarming to those of us who think retaining full partnership with the law faculty is crucial for the future effectiveness of …

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

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High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.

Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of …