Digital Commons Network^™

A Glass Half Full Look At The Changes In The American Legal Market, Benjamin H. Barton

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The American legal profession finds itself in the midst of dizzying changes. What was once viewed as a brief downturn now looks like a much more substantial restructuring and downsizing. The main commentators on these trends have been those most likely to be affected: law professors and corporate lawyers, and they have largely presented these trends as disastrous. This Essay argues that while these changes will be painful in the near term, they will prove beneficial overall.

The obvious reason for optimism is that America will be significantly better off if we spend less on legal services. Whatever else the …

Tackling 'Arithmophobia': Teaching How To Read, Understand, And Analyze Financial Statements, Eric Franklin Amarante

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This discussion presents different ideas on how to teach accounting and practical finance to law students.

Technology's Triple Threat To The Attorney-Client Privilege, Paula Schaefer

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Three issues – volume of recorded communications, ease of dissemination, and lack of knowledge – are today’s primary technology-related threats to the attorney-client privilege. Generally speaking, attorney-client communications must be kept confidential to retain their privileged status. In the information age, the volume of recorded attorney-client communications and ease of their dissemination makes it more difficult than ever to protect against disclosure. Whether that disclosure is intentional or inadvertent, it can result in privilege waiver.

While some perceive that a gap in attorney knowledge about technology is a major threat to the privilege, that does not appear to be the …

Effective Contract Drafting: Indentifying The Building Blocks Of Contracts, Lori D. Johnson

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No abstract provided.

Foreword To The Conference: The Law: Business Or Profession? The Continuing Relevance Of Julius Henry Cohen For The Practice Of Law In The Twenty-First Century, Samuel J. Levine

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No abstract provided.

An Essay On Rebuilding And Renewal In American Legal Education, Jack Graves

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The American model of legal education is broken as a value proposition. Like a building with an undermined foundation, it must be rebuilt rather than refurbished. And, like any rebuilding project, it will be costly and disruptive to many of its occupants. However, it will also present unique opportunities for innovation and renewal. This essay suggests a few of the contours for such a rebuilding project and describes a few of the benefits that might result.

Does Testing = Race Discrimination?: Ricci, The Bar Exam, The Lsat, And The Challenge To Learning, Dan Subotnik

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Aptitude and achievement tests have been under heavy attack in the courts and in academic literature for at least forty years. Griggs v. Duke Power (1971) and Ricci v. DeStefano (2009) are the most important judicial battle sites. In those cases, the Supreme Court decided the circumstances under which a test could be used by an employer to screen employees for promotion when the test had a negative racial impact on test takers.

The related battles over testing for entry into the legal academy and from the academy into the legal profession have been no less fierce. The assault on …

Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz

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This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.

Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino

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Outside health care counsel frequently obtain medical records, billing records, health insurance claims records, and other records containing individually identifiable health information in the course of representing health industry clients in medical malpractice, licensure, certification, accreditation, fraud and abuse, peer review, and other civil, criminal, and administrative health law matters. This Article is the first to argue that state rules of professional conduct, not federal health information confidentiality regulations, should govern outside health care counsel’s use and disclosure of confidential client information, and that outside counsel should be excepted from direct federal regulation under the HIPAA Privacy Rule.

Teaching Social Justice, Expanding Access To Justice: An Introduction, Ngai Pindell, Jackie Gardina

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No abstract provided.

What's Left To Remedy Wage Theft? How Arbitration Mandates That Bar Class Actions Impact Low-Wage Workers, Nantiya Ruan

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For low-wage workers who suffer “wage theft” – employers illegally withholding portions of their wages – the dollars missing from their paychecks violate existing law and significantly impact the well-being of individuals, families, and communities. Despite this dire societal problem, the Supreme Court continues “closing the courtroom doors” in two ways: allowing employers to force workers out of court and into private arbitration; and prohibiting aggregate claims. Such trends, in combination, silence wage theft, leaving many claims unheard while unscrupulous employers gain direct advantage.

This Article explains how various procedural rulings have combined to prevent meaningful redress for wage theft. …

Masculine Law Firms, Ann C. Mcginley

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This article describes the masculine culture in law firms and analyzes how this culture harms both men and women because of their gender. Part II explains MMT, and analyzes the masculine practices that exist in modern law firms. Part III studies a lawsuit brought by a law firm associate, a white male father of two who allegedly was fired in retaliation for taking leave under the Family Medical Leave Act and because of his failure to adhere to the macho stereotypes prevalent in the law firm. Part IV analyzes how the law should respond to masculine norms, and suggests that …

Dean's Column: Academic Success At Boyd, Jennifer Carr

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No abstract provided.

Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch

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This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorneyclient conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. …

Fortify Yourself, George Kuney

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No abstract provided.

Mobilization And Poverty Law: Searching For Participatory Democracy Amongst The Ashes Of The War On Poverty, Wendy A. Bach

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In 1964, at the height of the Civil Rights Movement, the federal government launched Community Action, a program that was to be designed and implemented with the maximum feasible participation of the poor. Today in governance theory, we are told once again that participation by affected communities in the mechanisms of governance have the ability to deepen democracy – to yield better policy and to engage new voices in the mechanisms of democracy. Mobilization and Poverty Law: Searching for Participatory Democracy Amongst the Ashes of The War on Poverty turns to history to explore a question central to both governance …

Dean’S Column: Collaborations With Professional Associations, Rachel J. Anderson

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This co-authored article documents the cooperation and synergies between the William S. Boyd School of Law at the University of Nevada, Las Vegas, and the Las Vegas Chapter of the National Bar Association (LVNBA). The LVNBA is the local affiliate of the National Bar Association, which is the nation’s oldest minority bar and largest national association of over 44,000 predominately African-American lawyers, judges, professors, and law students. The article is part of a special Black History Month issue of the Nevada Lawyer, the official publication of the State Bar of Nevada. That issue highlights the achievements and contributions of African-American …

Lawyers Intentionally Inflicting Emotional Distress, Alex B. Long

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This article examines the tort of intentional infliction of emotional distress (IIED) as applied to lawyers engaged in the practice of law. IIED claims against lawyers have arisen in a variety of contexts, ranging from a lawyer’s act of disclosing client confidences to a prosecutor to demanding sex from a client in exchange for legal services. Courts have always had difficulty defining the concept of “extreme and outrageous conduct” for purposes of an IIED claim, but IIED claims against lawyers pose even greater definitional problems for courts. In an effort to provide greater clarity, the article advocates that courts should …

Professionalism And Matthew Shardlake, Alex B. Long

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This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.

Triaging Appointed-Counsel Funding And Pro Se Access To Justice, Benjamin H. Barton

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For decades, scholars and advocates have lauded Gideon’s guarantee of appointed counsel in criminal cases and sought to extend it into a civil-Gideon right in a range of civil cases. This past Term, the Supreme Court disappointed the civil-Gideon movement in Turner v. Rogers, unanimously rejecting an across-the-board right to counsel while encouraging reforms to make courts more accessible to pro se litigants. Turner is mostly right, we argue, because funding limitations require reserving counsel mostly for criminal cases, where they are needed most. For the first time, the Court recognized that lawyers can make cases not only slower and …

Derrick Bell’S Community-Based Classroom, Joy Radice

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In Derrick Bell’s Community-based Classroom, I argue that Derrick Bell enhanced his participatory pedagogical approach to teaching constitutional law by intentionally creating community within the law school classroom — a community that humanized the students’ educational experience. This essay explores three ways in which he created community: through his participatory, student-centered course structure; his social classroom environment; and his interactive self-assessments. Over the past few years, legal education has come under indictment in the media for not adequately training lawyers for practice. Bell’s community-based classroom responds to this indictment, fusing both theory and practice in teaching doctrinal constitutional law courses …

Introduction: Lawyers As Conservators?, Joan W. Howarth

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This Symposium reminds us of our most important work, to protect legal institutions and the rule of law, and asks this most provocative question: Will 21st Century Business, Regulatory, and Educational Challenges Destroy the Lawyer's Role As Guardian of Legal Institutions and the Rule of Law?To some Symposium participants, the question posed is too dystopian. Is survival of the rule of law really at stake? For others, the Symposium question suggests a prior, even darker one: How can we conserve what is already lost? How, indeed, will we conserve legal institutions and the role of law? Are we, as lawyers, …

Changing The Modal Law School: Rethinking U.S. Legal Education In (Most) Schools, Nancy B. Rapoport

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This essay argues that discussions of educational reform in U.S. law schools have suffered from a fundamental misconception: that the education provided in all of the American Bar Association-accredited schools is roughly the same. A better description of the educational opportunities provided by ABA-accredited law schools would group the schools into three rough clusters: the “elite” law schools, the modal (most frequently occurring) law schools, and the precarious law schools. Because the elite law schools do not need much “reforming,” the better focus of reform would concentrate on the modal and precarious schools; however, both elite and modal law schools …

Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post

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No abstract provided.

Injecting Law Student Drama Into The Classroom: Transforming An E-Discovery Class (Or Any Law School Class) With A Complex, Student-Generated Simulation, Paula Schaefer

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Gem Finch, Boone Radley, and Pickle Harris are just three of the characters who play a dramatic – and key – role in my e-discovery focused pre-trial litigation class. I did not originally invite them into the class for the drama. I was interested in their email. In 2009, I was planning a pre-trial litigation class that would include e-discovery issues. But I could not find a pre-packaged case that included ESI – the electronically stored information that is the mainstay of e-discovery practice. The case materials included in most pre-trial litigation books involved car accidents and simple contract disputes. …

Values As Part Of The Clinical Experience, Jaime Baker Roskie

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This essay is based on a short talk I gave at the “Practically Grounded” conference hosted by Pace Law School’s Land Use Law Center. This piece discusses the University of Georgia (UGA) Land Use Clinic, specifically why and how I interact with my students in the classroom about values as part of the clinic experience. It attempts to tie my own teaching methods to those suggested in Best Practices for Legal Education.

The Tax Man's Ethics: Four Of The Hardest Ethical Questions For An Irs Lawyer, Michelle M. Kwon

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The traditional approach to legal ethics often is characterized to mean that lawyers must zealously advocate for their clients’ objectives tempered only by the bounds of the law. In contrast to the traditional approach, the public interest approach to legal ethics extends a government lawyer’s professional ethical duties from the agency client to the public at large to further the public interest. Commentators, in advocating either the traditional approach or the public interest approach to government lawyering, disagree about whether a government lawyer owes some sort of duty to the public and if so, the nature and scope of that …

Responding To Welfare Privatization: New Tools For A New Age, Wendy A. Bach

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Privatization of the operation of public benefit programs in the wake of welfare reform has diminished the effectiveness of traditional approaches to advocacy. A case study from New York City of how private contractors succeeded in reducing welfare roles while imposing punitive policies on poor families offers a glimpse of possible new advocacy tools. Requiring contract-monitoring bodies that involve community members and advocates could help facilitate transparent contracting processes and reshape social welfare programs to serve clients.

Harming Business Clients With Zealous Advocacy: Rethinking The Attorney Advisor's Touchstone, Paula Schaefer

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Joseph Collins was a successful business lawyer, with a sophisticated practice at Mayer Brown LLP. In January 2010, Collins was sentenced to seven years in prison for his role in a massive fraud that cost investors millions and sent his client Refco, Inc. into bankruptcy. At sentencing, the judge reportedly stated, “I think this is a case of excessive loyalty to his client.” Collins’ own testimony reflects a lawyer who believed he was zealously representing his client's interests. But in reality, Collins’ conduct was not “loyal” to his client. He contributed to his client’s destruction.

With the Collins example and …

How Idea Fails Families Without Means: Causes And Corrections From The Frontlines Of Special Education Lawyering, Dean Rivkin

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The struggle for equal educational opportunity for students with disabilities whose families have few resources is waged daily within the framework of the Individuals with Disabilities Education Act (IDEA), a complex entitlement statute. Unlike the progress made under the IDEA for their wealthier peers, low-income children are not reaping the educational benefits that effective advocacy has achieved for students with disabilities who can afford determined, skilled and knowledgeable experts to navigate the highly technical mandates of the law. But in the current landscape of retrenchment, the more "smart" corrections that advocates and lawyers can formulate, the greater the likelihood that …