Digital Commons Network^™

Foreword To Latcrit 2017 Symposium: What’S Next? Resistance Resilience And Community In The Trump Era, Jorge R. Roig, Saru M. Matambanadzo, Sheila I. Vélez-Martínez

Scholarly Works

In this Foreword, we strive to contextualize “LatCrit XXI: What’s Next?” against the backdrop of two crises: the current political crisis in the United States and the continuing crisis of scarcity that impacts the legal academy. Through an examination of these crises, we will reveal how LatCrit scholars, in their efforts to build community and in their commitment to critical outsider scholarship, are part of the constellations of resistance that struggle against el mundo malo. We will argue that LatCrit has become a necessary institution for those seeking to engage in persistent resistance and dissent in the critical and progressive …

Constructing More Reliable Law And Policy: The Potential Benefits Of The Underused Delphi Method, Juan Bataller-Grau, Elies Segui-Mas, Javier Vercher-Moll, Jeffrey W. Stempel

Scholarly Works

Law has long aspired to achieve status as a science. A central theme of much legal philosophy has been the quest for legal doctrine to become more like scientific axioms or findings produced through a scientific inquiry. Considerable debate has surrounded the issue. Part of the legal profession sees the question of law's science status as doomed to failure and regards law as a distinct type of discipline. Others in the legal profession are attracted to the aspiration but express doubt regarding whether the methods that the legal doctrine has traditionally employed can achieve the greater apparent rigor of the …

Calling For A Community Economic Development Code Of Ethics, Michele Alexandre, Patience A. Crowder, Audrey Mcfarlane

Scholarly Works

No abstract provided.

Time Is Money: Technology Can Help You Create More Of Both, Benjamin H. Barton

Scholarly Works

No abstract provided.

Rebooting Justice: Odr Is Disrupting The Judicial System, Benjamin H. Barton

Scholarly Works

No abstract provided.

Access-To-Justice Challenges For Expungement In Tennessee, Joy Radice

Scholarly Works

No abstract provided.

Access To Justice And Routine Legal Services: New Technologies Meet Bar Regulators, Benjamin H. Barton

Scholarly Works

We are in the early stages of a technological revolution in legal services. Technology is displacing lawyers in a wide array of tasks such as document drafting, review, and assembly, and is also reshaping the way that lawyers find clients and deliver assistance. For most consumers, these are welcome developments. Such innovations generally reduce costs and increase both accessibility and efficiency. The potential gains are particularly great for low- and middle-income consumers, who lack access for a vast array of basic, often urgent, legal needs. Yet for lawyers, the consequences of technology have been more mixed. Many feel that their …

Three Pioneers: New Ideas For Private Law Practice, Benjamin H. Barton

Scholarly Works

No abstract provided.

Bringing Counsel In From The Cold: Reconciling Ethical Rules With The Quagmire Of Insurance Defense Practice, Joseph Regalia, V. Andrew Cass

Scholarly Works

Our case study is an ethical dilemma faced by insurance defense attorneys daily. An attorney is hired by Insurance Company A to defend an insured who is in a lawsuit over a car accident. Insurance Company A is one of the attorney's best clients, from whom he receives a steady stream of cases. Our attorney's investigation reveals good news-another driver not yet a party to the lawsuit may have contributed to the accident. This revelation has the potential to shift the blame, and all or part of the financial responsibility, onto the shoulders of the new potential party and his …

Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky

Scholarly Works

This Article addresses the federal tax concerns ofpersonal injury plaintiffs and the lawyers who represent them, typically on a contingencyfee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount …

Towards A Jurisprudence (And Pedagogy) Of Access: A Reflection On 25 Years Of The Public Interest Practicum, Alex Scherr, Elizabeth M. Grant, Graham Goldberg

Scholarly Works

The Public Interest Practicum (PIP), a course at the University of Georgia School of Law, fosters awareness among law students of the demand for access to justice. For more than 25 years, PIP has served many purposes: to explore a street level jurisprudence; to challenge students’ professional identities; to generate new models of clinical legal education; to inculcate the habit of public service; and to help individuals with legal problems. Through its many iterations, PIP has consistently exposed future lawyers to ways of helping those in need. This reflection traces the history of PIP as a course, contextualizes it within …

Publicly Funded Objectors, Elizabeth Chamblee Burch

Scholarly Works

On paper, class actions run like clockwork. But practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem — information barriers confront judges, objectors, and even reformers. Rule 23’s answer is to empower objectors. At best, objectors are a partial fix. …

Athens Access To Justice Initiative: Judicial Leadership + Bar Support + Local Resources = Powerful Synergy, Eleanor Lanier

Scholarly Works

No abstract provided.

Access To Consumer Bankruptcy, Pamela Foohey

Scholarly Works

This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias, and …

Ethical Issues In Robo-Lawyering: The Need For Guidance On Developing And Using Artificial Intelligence In The Practice Of Law, Drew Simshaw

Scholarly Works

As in many other industries, artificial intelligence ("AI") is poised to drastically transform the legal services landscape. "Bots, " automated expert systems, and predictive analytics are already changing the way consumers seek, and lawyers provide, legal services. Among other impacts, AI has the potential to increase access to justice in the self-help, individual, and corporate law firm markets by lowering costs and expanding services to untapped markets. A prominent question in early literature on AI in law is whether these services constitute the unauthorized practice of law. Threshold questions of whether and by whom such services should be regulated are …

Toward Universal Deportation Defense: An Optimistic View, Michael Kagan

Scholarly Works

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, Professor Michael Kagan makes no real predictions. Instead, he offers a deliberately-perhaps even blindly optimistic assessment of how concrete steps that …

Professional Responsibility In An Age Of Alternative Entities, Alternative Finance, And Alternative Facts, Joan Macleod Heminway

Scholarly Works

Business lawyers in the United States find little in the way of robust, tailored guidance in most applicable bodies of rules governing their professional conduct. The relative lack of professional responsibility and ethics guidance for these lawyers is particularly troubling in light of two formidable challenges in business law: legal change and complexity. Change and complexity arise from exciting developments in the industry that invite — even entice — the participation of business lawyers.

This essay offers current examples from three different areas of business law practice that involve change and complexity. They are labeled: “Alternative Entities,” “Alternative Finance,” and …

Why Can't We Be Friends? A Business Finance Lawyer's Plaintive Plea To Entrepreneurs, Joan Macleod Heminway

Scholarly Works

Entrepreneurs have the capacity to add value to the economy and the community. Business lawyers — including business finance lawyers — want to help entrepreneurs achieve their objectives. Despite incentives to a symbiotic relationship, however, entrepreneurs and business finance lawyers are not always the best of friends. This symposium piece offers several approaches to bridging this gap between entrepreneurs and business finance lawyers.

The Trouble With Transitions: Preserving Government Records During A Presidential Transition, Sarah C. Slinger, Nicholas Mignanelli

Scholarly Works

Times of transition from administration to administration are often, if not always, trying periods for the United States and its people. In particular, concerns arise over the preservation of documents from one administration to the next. This is especially true when the torch of executive power passes from one party to the other. Although preservation of information is a seemingly objective endeavor, it is difficult to abstain from politics when the documents involved are inherently political. Recently, the Trump Administration has expressed its intentions to scale back the size of government and take key offices—such as the Department of Energy—in …

Leveraging Academic Law Libraries To Expand Access To Justice, Paul Mclaughlin

Scholarly Works

Academic law libraries are in a unique position to help citizens gain access to the court system and legal information. By creating clinics that focus on helping pro se patrons find and complete legal forms, academic law libraries would not only benefit their schools but also the justice system.

Rethinking Self-Regulation: Antitrust Perspectives On Bar Governance Activity, Benjamin H. Barton

Scholarly Works

This article discusses the American bar’s unfortunate over-protection against the unauthorized practice of law and the ways that the Supreme Court’s recent ruling in North Carolina Board of Dental Examiners v. Federal Trade Commission suggests that their anticompetitive practices may face new hurdles. The article surveys the background of federal antitrust doctrine and describes the scope and rationale of the Dental Examiner’s ruling. The article then offers some thoughts on the implications of the decision for bar regulatory activities, including a recent example involving the North Carolina bar’s UPL action against LegalZoom. We close with some suggestions about how the …

Embracing Our Public Purpose: A Value-Based Lawyer-Licensing Model, Bobbi Jo Boyd

Scholarly Works

No abstract provided.

Do It In The Sunshine: A Comparative Analysis Of Rulemaking Procedures And Transparency Practices Of Lawyer-Licensing Entities, Bobbi Jo Boyd

Scholarly Works

No abstract provided.

Teaching The Hipaa Privacy Rule, Stacey A. Tovino

Scholarly Works

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, but certainly are not limited to, a final rule published on January 25, 2013, governing the use and disclosure of protected health information by covered entities and their business associates (the …

Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch

Scholarly Works

When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.

Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at …

Calling On The Cfpb For Help: Telling Stories And Consumer Protection, Pamela Foohey

Scholarly Works

Since it began operating in 2011, the Consumer Financial Protection Bureau (CFPB) has handled more than a million complaints regarding consumer financial product and services. Beginning in June 2015, the CFPB began publishing consumers’ narratives submitted with their complaints. This Article analyses a random sample of 5,000 of these narratives to assess how people engage with the complaint mechanism in light of the CFPB’s role in processing complaints. I find that people predominately use the complaint function for two distinct purposes: to express their anger and frustration about companies’ practices, or to express sadness and fear about how companies’ practices …

'No Money Down' Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Scholarly Works

This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer …

The Hipaa Privacy Rule And The Eu Gdpr: Illustrative Comparisons, Stacey A. Tovino

Scholarly Works

In this Article, Professor Tovino compares and contrasts three illustrative concepts and rights in the Privacy Rule and/or the GDPR, including the concepts of authorization and consent, the rights of amendment and rectification, and the right to erasure. Identified similarities reflect the core values of HHS and the EU with respect to maintaining the confidentiality and privacy of personal data and protected health information, respectively. Identified differences reflect the Privacy Rule's original, narrow focus on health industry participants and individually identifiable health information compared to the GDPR's broad focus on data controllers and personal data. Other differences reflect, perhaps, the …

Asymmetry And Adequacy In Discovery Incentives: The Discouraging Implications In Haeger V. Goodyear, Jeffrey W. Stempel

Scholarly Works

In this article, Professor Jeffrey Stempel explores the implications the decision in Haeger v. Goodyear Tire & Rubber Co. has for discovery and civil procedure. Professor Stempel argues the troublesome narrative that discovery problems and "abuse" are largely problems of claimants seeking excessive discovery that is unduly burdensome and costly relative to the case at hand is a significant part of the problem. Since the mid-1970s, the prevailing narrative has blamed discovery seekers more than discovery resisters.In that narrative, discovery problems are largely the problems of plaintiffs that are too unrealistic, sloppy, lazy, or greedy in frequently seeking excessive discovery. …

The Case For A Uniform Cut Score, Joan W. Howarth

Scholarly Works

To our detriment, attorneys have become accustomed to state-by-state disparities in the cut score for our national, multiple choice licensing test, the Multistate Bar Exam (MBE). MBE cut scores range from 129 in Wisconsin to 145 in Delaware. The states with the most licensed attorneys, New York and California, use MBE cut scores of 133 and 144, respectively, which land on different sides of the national MBE score bell curve bulge. No one pretends that these disparities are justified because practicing law as a new lawyer is more difficult in California than in New York. The MBE cut score is …