Law Commons^™

How Not To Lie: A Don't-Do-It-Yourself Guide For Litigators, Leonard Niehoff

Articles

Over the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants …

Noise Pollution, Patrick Barry

Reviews

The authors of Noise: A Flaw in Human Judgment are a trio of intellectual heavy hitters: Nobel Prize-winner Daniel Kahneman, constitutional law scholar Cass Sunstein, and former McKinsey consultant (and current management professor) Olivier Sibony. As prolific as they are prominent, the three of them have collectively produced over fifty books and hundreds of articles, including some of the most cited research in social science. If academic publishing ever becomes an Olympic sport, they’ll be prime medal contenders, particularly if they get to compete as a team or on a relay. Their combined coverage of law, economics, psychology, medicine, education, …

Professionalism In Tribal Jurisdictions, Matthew L.M. Fletcher

Articles

American Indian law is an important area of law. There are 12 federally recognized Indian tribes in the state of Michigan.1 Indian tribes throughout the United States do business in Michigan. Indian tribal governments and corporations employ hundreds of thousands of non-Indians and received billions in federal pandemic relief. Indian gaming generated nearly $40 billion in revenues nationally last year. Still, many lawyers ignore the field or claim ignorance about the basic precepts of federal Indian law.

This article will canvass several themes of professionalism in tribal practice, drawing from this author’s tribal law experience over the last few decades. …

Libraries & Legal Research: Resources For Technological Competency, Virginia Neisler

Law Librarian Scholarship

At the time this article was written, Michigan was one of 39 states that included understanding relevant technologies as a part of the duty of attorney competence. In 2019, the Michigan Supreme Court formally adopted a new comment to MRPC 1.1. With respect to competence as covered under this rule, their comment made explicit that all Michigan attorneys should “engage in continuing study and education, including the knowledge and skills regarding existing and developing technology that are reasonably necessary to provide competent representation for the client in a particular matter” [emphasis added].

In February 2020, the State Bar of Michigan …

Comment: Without Effective Lawyers, Do More Determinate Legal Standards Really Matter?, Vivek S. Sankaran

Articles

In Confronting Indeterminacy and Bias in Child Protection Law, Professor Josh Gupta-Kagan wisely proposes that the child protection system needs more precise legal standards, not just to limit unnecessary state intrusion in the lives of families, but to also define the scope of that intrusion if it must occur. But as I read his piece, a question repeatedly ran through my mind - will the changes he proposes have any impact if parents in the child protection system continue to have ineffective lawyers representing them?

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

Book Chapters

This article addresses the general question of truthfulness in the process of negotiation, as that question is faced in Rule 4.2 of the Model Rules of Professional Conduct. The obligation to behave truthfully in negotiation is embodied in the requirement of Rule 4.2(a) that directs the lawyer to “be fair in dealing with other participants.” The article then presents five cases which show that one does not and cannot intend that a negotiator be “truthful” in the broadest sense of that term. It would be unfortunate, therefore, for the rule that requires “fairness” to be interpreted to require that a …

Judges Behaving Badly . . . Then Slinking Away, Maureen Carroll

Reviews

A federal judge is accused of misconduct and an investigation begins. Before the investigation has concluded, though, the judge leaves her post. What happens next? Does it create an accountability gap, and if so, how much should that concern us? These are the questions that Veronica Root Martinez takes up in Avoiding Judicial Discipline.

Work Only We Can Do: Professional Responsibility In An Age Of Automation, Sherman J. Clark

Articles

Automation can help us do our work as lawyers; but in the process, it should also force us to be more thoughtful about what our work really is or ought to be.' The challenge for the profession, as I see it, is not simply to survive the advent of new technology, nor even merely to make effective use of new tools. While addressing those immediate concerns, we should also welcome the concomitant opportunity to develop and refine our understanding of what it means to be a good and ethical lawyer. As technological developments free us from and prevent us from …

Addressing Cultural Bias In The Legal Profession, Debra Chopp

Articles

Over the past two decades, there has been an outpouring of scholarship that explores the problem of implicit bias. Through this work, commentators have taken pains to define the phenomenon and to describe the ways in which it contributes to misunderstanding, discrimination, inequality, and more. This article addresses the role of implicit cultural bias in the delivery of legal services. Lawyers routinely represent clients with backgrounds and experiences that are vastly different from their own, and the fact of these differences can impede understanding, communication, and, ultimately, effective representation. While other professions, such as medicine and social work, have adopted …

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is an emerging consensus, however, that children in dependency cases should have lawyers and those lawyers should be as active and as involved in their cases as are lawyers for any other party in any other litigation. Although state law and policy makers differ as to what voice the child should have in determining the direction and goals of the litigation, that is, whether the child's lawyer should represent the best interests of the child as determined by the …

Assignments With Intrinsic Lessons On Professionalism (Or, Teaching Students To Act Like Adults Without Sounding Like A Parent), Beth H. Wilensky

Articles

There is little question that law schools ought to teach their students professionalism – indeed, they are required to do so to maintain accreditation. And there is little question that the required legal writing and research course is one of the places it ought to be taught. But teaching students to adopt the norms of professional behavior — both in law school and after graduation — is a challenge to law faculties, and particularly to the experiential learning faculty who frequently are on the front lines of teaching professionalism. While there are many ways to teach students what professional and …

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

Articles

In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. …

Ethics For Media Lawyers: The Lessons Of Ferguson, Leonard M. Niehoff

Articles

Ferguson, Missouri, has a population of roughly 21,000 people. Thirty cities in Missouri have larger populations. The Edward Jones Dome, where the St. Louis Rams play football, seats three times as many people. Most of us had never heard of Ferguson prior to August 9, 2014, when a police oficer named Darren Wilson shot and killed an unarmed black teenager named Michael Brown. But, to paraphrase the grim observation of Ambrose Bierce, war is how Americans learn geography. So, as violence and vandalism erupted on its streets, the nation turned its attention toward Ferguson and labored to understand the place, …

Soft-Core Perjury, Leonard M. Niehoff

Articles

Despite its greater pervasiveness, however, soft-core perjury has generated considerably less discussion and debate than hard-core perjury has. There are reasons for this, but they are not good ones. Indeed, we might summarize the matter this way: Lawyers tend to dismiss the soft-core perjury problem because they do not see it as a problem. They do not see it as an ethical problem, and they do not see it as a practical problem. They are wrong on both counts.

The idea that soft-core perjury poses no ethical problem comes from the view that the lawyer's dilemma-or trilemma, if you will-arises …

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is a growing consensus, however, that children in dependency cases should have lawyers who are as active and as involved in their cases as are lawyers for any other party in any other litigation. Yet there continues to be confusion and debate over the role and duties of the lawyer, particularly as to what voice the child should have in determining the direction and goals of the litigation. Policy makers have differed as to whether the child's lawyer should …

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

Articles

Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …

Interdisciplinary Clinical Teaching Of Child Welfare Practice To Law And Social Work Students When World Views Collide, Kathleen Coulborn Faller, Frank E. Vandervort

Articles

Because child welfare cases in the world of professional practice require interdisciplinary collaboration, it would seem to follow that graduate students, who will become child welfare professionals, should be trained together, both in the classroom and in clinical settings. However, the implementation of interdisciplinary training is far from straightforward. In this Article, we focus on law and social work students. First, we describe the roles of lawyers and social worker in child welfare work. Next we argue that interdisciplinary classroom teaching is easier than clinical teaching, proposing a series of topics to be covered in an interdisciplinary course. Finally, we …

Afterword: Elite Principles: The Ali Proposals And The Politics Of Law Reform, Carl E. Scheider

Book Chapters

The Reporters of the PRINCIPLES were distinguished legal scholars who produced a serious and ambitious document. The contributors to the present volume subject the PRINCIPLES to probing, thoughtful, and illuminating analysis. At the volume's beginning, Professor Glendon puts the problems of family law in a broader perspective by examining the challenges families today face in living good lives. Now, at the volume's close, I want to put both the PRINCIPLES and the essays in a broader perspective. I need not vivisect the PRINCIPLES; that is admirably done by the essayists. Rather, I proffer a tool for understanding the PRINCIPLES more …

Conclusion: 'If You Don't Pull Up . . .'., James J. White

Other Publications

Today I am going to talk about a lawyer duty that is just as important as the duty to exercise warm zeal on behalf of a client, but it is a duty that is unknown to the popular culture and rarely touched on in law school. That is the duty to say no to your client, to step in front of a client who is determined to do something stupid, or in violation of the civil or criminal law.

Representing Children And Youth, Donald N. Duquette, Marvin Ventrell

Book Chapters

Quality legal representation of all parties is essential to a high-functioning dependency court process. Quality legal representation of children in particular is essential in obtaining good outcomes for children. An adversarial court process that depends on competing independent advocacy to provide information will not produce good outcomes for litigants who lack competent advocates. Dependency court decisions are as good as the information on which the decisions are based. In order to promote the welfare of children in dependency court, therefore, children must be provided with competent independent legal representation.

Competition, Corporate Responsibility, And The China Question, Jospeh Vining

Other Publications

"Corporate responsibility" is not a peripheral matter. It is at the core of all decision-making on behalf of business corporations under American law. This paper examines the effort to add an exemption for "business" in corporate form to the exemptions from ordinary responsibility that are seen in other areas of activity - e.g., for the military, for lawyers in adversarial litigation, or for investigators in scientific research. It looks at a number of well known cases and points to the often neglected relevance of both the criminal law applicable to corporations as such, and the evolving professional responsibility of corporate …

Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold

Articles

In 1992, when the University of California's Hastings College of Law decided to offer a live-client clinic for the first time, its newly hired director had to make several decisions about what form the program should take.1 The first question for the director was whether the clinic should be a single-issue specialty clinic or a general clinic that would represent clients across several areas of the law. The second question, and the one that will be the focus of this essay, was whether the program should restrict its caseload to "easy" routine cases or also accept non-routine, less controllable litigation. …

The Scholar As Advocate, Rebecca S. Eisenberg

Articles

Academic freedom in this country has been so closely identified with faculty autonomy that the two terms are often used interchangeably, especially by faculty members who are resisting restraints on their freedom to do as they please. While there may be some dispute as to whether or how far academic freedom protects the autonomy of universities or of students, the autonomy of faculty members seems to lie close to the core of the traditional American conception of academic freedom. As elaborated by the American Association of University Professors, this conception of academic freedom calls for protecting individual faculty members from …

Discretion And Rules: A Lawyer's View, Carl E. Scheider

Book Chapters

In modern society the law regulates the complex behavior of millions of people. To do this efficiently-to do this at all-broadly applicable rules must be used. Yet such rules are bound to be incomplete, to be ambiguous, to fail in some cases, to be unfair in others. Some of the drawbacks of rules can be minimized by giving discretion to the administrators and judges who apply them. Yet doing so dilutes the advantages of rules and creates the risk that discretion may be abused. Working out the proper balance of these considerations is both necessary and perplexing in every area …

Gender And Race Bias Against Lawyers: A Classroom Response, Suellyn Scarnecchia

Articles

In reviewing other clinicians' approaches to teaching about bias, I identified problems that eventually led me to design a two-hour class session on bias against lawyers. The following is a review of a few other teaching methods and a description of my own approach, detailing its own strengths and weaknesses. This is not an exhaustive review of all possible approaches to bias. It is offered to promote classroom discussion of bias against lawyers and to invite the development of innovative alternatives to my approach.

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

Articles

Upon the enactment of the Model Rules of Professional Conduct, published ethical norms will for the first time give explicit consideration to the lawyer's behavior in the process of negotiation. Rules 4.1, 4.2, and 4.3 deal with negotiation. Although the Canons, the interpretations of the Canons, and the Disciplinary Rules and Ethical Considerations gave tangential consideration to negotiating, 1 none of the Disciplinary Rules or Ethical Considerations explicitly considered negotiation apart from the process of litigation or counseling. The mere recognition of negotiation as a separate process worthy of unique rules is a large step. The purpose of this paper …

An Inquiry Concerning The Functions Of Procedure In Legal Education, Edson R. Sunderland

Articles

Procedure has always been the bete noire of the law school teacher. No other subject has developed such divergent opinions or such endless debates. None recurs with such periodic frequency and in no field of legal pedagogy has discussion seemed so barren of results. Three different general sessions of the Association of American Law Schools during the last ten years have been devoted largely or wholly to the subject of teaching procedure, and yet no substantial progress seems to have been made toward a standardized scheme of treatment. Individual teachers and schools have their individual views and policies, and they …

An Inquiry Concerning The Functions Of Procedure In Legal Education, Edson R. Sunderland

Other Publications

Procedure has always been the bete noire of the law school teacher. No other subject has developed such divergent opinions or such endless debates. None recurs with such periodic frequency and in no field of legal pedagogy has discussion seemed so barren of results. Three different general sessions of the Association of American Law Schools during the last ten years have been devoted largely or wholly to the subject of teaching procedure, and yet no substantial progress seems to have been made toward a standardized scheme of treatment. Individual teachers and schools have their individual views and policies, and they …

Reinstatement Of Disbarred Attorney, Edson R. Sunderland

Articles

The petitioner asked to be reinstated. The court, excepting Justice Fellows, who concurred in the result but expressed no opinion, said they would be glad to reinstate him but for the fact that he was a non-resident, which in their opinion made him ineligible, but they gave their endorsement of his good character by vacating the order of disbarment. The questions which occur are these: 1. Did the court have the power to vacate its order of disbarment after the time for opening, amending or vacating judgments had passed? 2. Did the vacation of the order of disbarment operate ipso …