Law Commons^™

The Good, The Right, And The Lawyer, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

Ignatian Spirituality And The Life Of The Lawyer: Finding God In All Things – Even In The Ordinary Practice Of The Law, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

All of us know lawyers who seem unhappy, unfree, directionless, and dis-integrated, who seem to be following paths they haven’t consciously chosen, leading them to places they would never have chosen to go, seemingly locked in lives they haven’t freely chosen to live. Some would characterize this reality as a manifestation of a spiritual crisis, a crisis of meaning and value in the law, rooted in the difficulty lawyers have integrating the practice of the law into the whole of their lives. This article argues that the spirituality flowing from the life of Ignatius of Loyola, the founder of the …

Law School As A Culture Of Conversation: Re-Imagining Legal Education As A Process Of Conversion To The Demands Of Authentic Conversation, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

Conventional wisdom holds that the principal task of a law school is to teach law students to "think like lawyers." However, law school can be experienced as a form of narrow training that diminishes something central to the human person: the fundamental drive to question and to follow those questions wherever they lead. This Article will explore the ways in which the thought of two scholars, Bernard Lonergan and James Boyd White, can usefully inform our understanding of this crisis of meaning and value within the context of a conception of law as a social and cultural activity. First, this …

The Importance Of Comparative Law In Legal Education: United States Goals And Methods Of Legal Comparisons, Hugh J. Ault, Mary Ann Glendon

Hugh J. Ault

This Essay discusses the gradual changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, primarily economics and behavioral sciences, and the contributions they make to a fuller understanding of the legal system. In addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Nearly every law school, therefore, is seriously investigating the social and economic background of legal rules and their consequences through clinical legal education, which attempts to provide a real or …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Legal Ethics, Patrick Emery Longan

Mercer Law Review

During the survey period, from June 1, 2010 through May 31, 2011, the appellate courts in Georgia decided cases involving the discipline of lawyers, ineffective assistance of counsel, legal malpractice, judicial ethics, and attorney disqualification. The State Bar of Georgia Formal Advisory Opinion Board took several actions that relate to the professional responsibilities of Georgia lawyers.

Putting Watergate Behind Us: Salinas, Sun-Diamond, And Two Views Of The Anticorruption Model, George D. Brown

George D. Brown

A central question in the ongoing debate over the future of the American political system is how to deal with public corruption. This Article first examines the dominant theme of the last thirty years: a relatively hard-line approach that Professor Brown refers to as the post-watergate concensus. In recent years, however, this approach has been subject to growing criminalization of government ethics; Professor Brown then turns to what can be viewed as the counterrevolutionary critique. Against this background, he considers the United States Supreme Court's contribution to the debate. Starting with the recent Sun-Diamond and Salinas cases, and drawing from …

Accountability, Liability, And The War On Terror -- Constitutional Tort Suits As Truth And Reconciliation Vehicles, George D. Brown

George D. Brown

This Article examines the role of civil suits in providing accountability for the Bush administration's conduct of the "war on terror." There have been calls for a "Truth and Reconciliation Commission" to perform this function, almost like a retroactive impeachment of President Bush. For now, the idea appears to be dead, especially since many of the policies have continued under President Obama. Increasingly, the default accountability mechanism for questioning government conduct is the array of civil suits against federal officials by self-proclaimed victims of the war, cases which might be referred to as reverse war on terror suits. Many of …

The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown

George D. Brown

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and …

"Orabunt Causas Melius": El Lema Del Colegio De Abogados De Lima Y La Historia (Singular) De Una Infamia, Leysser L. Leon

Leysser L. León

El autor explica el particular y desconocido significado de la enseña del Colegio de Abogados de Lima: "Orabunt causas melius" (VIRGILIO, Eneida, canto VI, verso 849) y propone una relectura moderna conforme las exigencias actuales de la abogacía.

Legitimacy, Accountability, And Partnership: A Model For Advocacy On Third World Environmental Issues, David A. Wirth

David A. Wirth

To date, there has been little effort to define the characteristics of responsible environmental reform efforts by private citizens and organizations in the United States on foreign environmental problems, such as the quality of foreign aid. Moreover, there have been virtually no attempts to identify a principled role for American lawyers in Third World environmental issues. This Essay will respond to these lacunae by articulating a new approach to advocacy based on a partnership model. In Part I, this Essay identifies the need for American public interest advocates to establish partnerships with directly affected groups on Third World environmental issues. …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay

Paul R. Tremblay

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without …

Rebellious Lawyering, Regnant Lawyering, And Street-Level Bureaucracy, Paul R. Tremblay

Paul R. Tremblay

This Article explores the professional responsibilities of progressive lawyers representing the poor and disadvantaged. The author argues that lawyers representing the poor are generally good, energetic lawyers committed to social justice and lessening the pain of poverty. Subsequently, the defects found in poverty lawyering are structural, institutional, political, economic, and ethical. Therefore, the author posits that the mission of teachers and practitioners should be to develop practice patterns and proposals that account for the street-level experiences of legal services lawyers on the front lines. By examining the notions of rebellious and regnant lawyering, the author seeks to illuminate how these …

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Paul R. Tremblay

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns …

Shadow Lawyering: Nonlawyer Practice Within Law Firms, Paul R. Tremblay

Paul R. Tremblay

Lawyers commonly associate with nonlawyers to assist in their performance of lawyering tasks. A lawyer cannot know with confidence, though, whether the delegation of some tasks to a nonlawyer colleague might result in her assisting in the unauthorized practice of law, because the state of the law and the commentary about nonlawyer practice is so confused and incoherent. Some respected authority within the profession tells the lawyer that she may only delegate preparatory matters and must prohibit the nonlawyer from discussing legal matters with clients, or negotiating on behalf of clients. Other authority suggests that the lawyer may delegate a …

Counseling Community Groups, Paul R. Tremblay

Paul R. Tremblay

The training of lawyers for years has established ethical and practice protocols based upon an individual representation model, or, if the protocols contemplated a form of collective representation, they have envisioned formal, structured entities with powerful constituents. The good lawyers who represent the dispossessed, the exploited, and the powerless need to craft different protocols, ones which accept messier, less organized, and often contentious group representation. Writing about the ethical and political mission of “community lawyers” has flourished, but that scholarship has tended to elide some knotty practical questions about the lawyers’ professional responsibilities in their work with such groups. This …

Acting "A Very Moral Type Of God": Triage Among Poor Clients, Paul R. Tremblay

Paul R. Tremblay

No abstract provided.

Toward A Community-Based Ethic For Legal Services Practice, Paul R. Tremblay

Paul R. Tremblay

This Article is concerned with legal services lawyers and how they ethically might allocate their time and resources among their clients. Part I of this Article describes the institutional terrain of legal services practice and introduces the concept of the lawyer as street-level bureaucrat, operating within a complex, high demand human services bureaucracy. Part II discusses the problems inherent in attempts to ration care within a subsidized law practice. The purpose of Part II is to reveal the practice tensions that establishment professional ethics fail to accommodate, and that form an underlying justification for a discussion of triage principles. Part …

Responses To The Conference, Impromptu Lawyering And De Facto Guardians, Paul R. Tremblay

Paul R. Tremblay

No abstract provided.

The Unjustified Absence Of Federal Fraud Protection In The Labor Market, Kent Greenfield

Kent Greenfield

Federal law offers significant protection against fraud in the capital market, based on the compelling rationale that accurate information is important in allowing the securities markets to allocate financial capital to real capital. Notwithstanding some recent statutory adjustments, federal securities law remains committed to a central idea: it is wrong for a company or a corporate official knowingly to make a misrepresentation in order to take value from another in a securities transaction. This article argues that rationales analogous to those justifying fraud protection in the capital market also hold true in the labor market. Fraud may in fact be …

Corporate Law And The Rhetoric Of Choice, Kent Greenfield

Kent Greenfield

Rhetorically, the notion of choice has always been a powerful one in politics and law. This essay is intended to offer a note of caution about its use. Despite its progressive hue of individual freedom, the rhetoric of choice increasingly tends to be a notion used to defend and uphold existing matrices of economic and social power. This is because the rhetoric of choice is an excellent way to support exiting power relationships. The assertion that people acting within such power relationships are simply choosing their current situation undermines efforts to change those relationships. The powerful stay powerful; the weak …

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Kent Greenfield

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that result. …

The Place Of Workers In Corporate Law, Kent Greenfield

Kent Greenfield

This article critiques the low place of workers within corporate law doctrine. Corporate law, as it is traditionally taught, is primarily about shareholders, boards of directors, and managers, and the relationships among them. This is despite the fact that workers provide an essential input to a corporation's productive activities, and that the success of the business enterprise quite often turns on the success of the relationship between the corporation and those who are employed by it. Black letter corporate law requires directors to place the interests of shareholders above the interests of all other "stakeholders," including workers. This article analyzes …

Gradgrind’S Education: Using Dickens And Aristotle To Understand (And Replace?) The Business Judgment Rule, Kent Greenfield, John E. Nilsson

Kent Greenfield

This article uses literature and philosophy to help explain and critique existing corporate law doctrine. Starting from Charles Dickens's Hard Times, the article provides a new explanation for one of the great puzzles of existing corporate law doctrine, the coexistence of the strict duty of management to maximize profits and the "business judgment rule," the practice of courts to review management decisions with great deference. The article argues that the business judgment rule is a necessary corrective to the irrationality of the underlying duty to maximize profits. The article makes this argument by analogizing corporate law to Dickens's character of …

Ombuds In Cloud Of Exabytes--Understanding The Ombuds' Digital Trail, Craig Mousin

Mission and Ministry Publications

This article examines Ombuds Standards of Practice as Ombuds increasingly rely upon electronic communication. It first explores the expansion of electronically stored information (ESI) due to the many different electronic devices Ombuds rely upon or interact with including computers, smartphones, and printers. It then reviews how novel legal issues caused by e-discovery--the search for relevant digital documents in litigation--will impact Ombuds. Finally, it offers Ombuds suggestions on managing and controlling ESI while raising the question of whether the International Ombudsman Association must review its Standards of Practice in light of these ESI developments.

Trust And The Commitment To Fairness, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

Assistant Professor Eugene Tan writes that tripartism has given us years of industrial peace and prosperity in Singapore, but warns that trust must work both ways. The high principle of tripartism does not necessarily mean that the partners will subscribe to the same policies and outlook on what is needed for workplace harmony.

Musings On Mediation, Kleenex, And (Smudged) White Hats, Nancy A. Welsh

Faculty Scholarship

This Essay speculates on the global future of mediation. It anticipates that mediation’s popularity will continue to grow both in the U.S. and abroad particularly as courts continue to encourage and institutionalize the process. Meanwhile, the Essay acknowledges the existence and continuing development of a relatively small cadre of elite lawyers and retired judges who serve as private mediators in large, complex matters.

The Essay also raises concerns, though, regarding the current lack of clarity in the goals and procedural characteristics that define mediation. The Essay asserts that such lack of clarity invites abuse of the mediation privilege and exclusionary …

Ombuds In Cloud Of Exabytes--Understanding The Ombuds' Digital Trail, Craig B. Mousin

Craig B. Mousin