Law Commons^™

Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney

Faculty Scholarship

Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.

The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …

Peter Singer, Drowning Children, And Pro Bono, John M.A. Dipippa

Faculty Scholarship

This Article uses the ethicist Peter Singer's principles to examine and critique the legal profession's pro bono efforts in the face of the persistent gap between the public's legal needs and their ability to meet them. Singer argues that adults should jump into a pond to save a drowning child. Using the drowning child as an analogy, this Article argues that lawyers are morally obligated to (1)increase the amount of their pro bono efforts, (2) be more selective in the cases they take, and (3) be significantly more generous in their financial support for legal services providers. These obligations are …

Speaking From The Grave. Should Copyright Listen?, Jessica Silbey

Faculty Scholarship

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s …

Lawyers And The Secret Welfare State, Milan Markovic

Faculty Scholarship

This Article suggests that the United States maintains a secret welfare state. The secret welfare state exists because of lawyers’ ubiquitous use of questionable practices in representing clients before benefit-granting government agencies, which enable thousands of individual to collect public benefits who may not qualify for them. This Article focuses in particular on lawyers’ handling of evidence of nondisability in Social Security Disability Insurance (SSDI) proceedings and participation in Medicaid planning. It may be possible that the legal profession’s central role in the distribution of public benefits is an obstacle to a fairer and more transparent social safety net.

Bridging Rule Of Law Theory And Implementation: The Role Of Professional Ethical Integrity,, Kate Bloch

Faculty Scholarship

No abstract provided.

The Rule Of Law And Ethical Integrity: Does Haiti Need A Code Of Legal Ethics?, Kate Bloch, Roxanne Edmond-Dimanche

Faculty Scholarship

No abstract provided.

From Out To In: The Opportunity And Need For Clinical Law Programs To Effectively Serve Low-Income Lgbt Individuals, Sarah Steadman

Faculty Scholarship

Although the recent legalization of same-sex marriage in the U.S. is heartening for lesbians and gays, the resulting discriminatory legislative backlash against the LGBT population shows that this community continues to be marginalized and at risk. Over two hundred anti-LGBT bills have been introduced in state legislatures since January 2016. North Carolina recently passed anti-LGBT legislation that eliminated and prohibits LGBT anti-discrimination protections, and bars transgender individuals from using gender congruent public bathrooms. One result of recent and historical discrimination is LGBT individual's newfound and pre-existing fears of encountering anti-LGBT bias when seeking legal services, even as recent developments have …

Culpable Participation In Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

This essay makes a case for the salience of tort law to fiduciary law, focusing on actors who culpably participate in a fiduciary's breach of duty, whether by inducing the breach or lending substantial assistance to it. Although the elements of this accessory tort are relatively settled in the United States, how the tort applies to particular categories of actors-most recently investment bankers who serve as M&A advisors-provokes controversy. The paper also explores the less developed terrain of primary actors who breach governance duties that are not fiduciary obligations because the entity's organizational documents eliminate fiduciary duties, as Delaware law …

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

Being Good Lawyers: A Relational Approach To Law Practice, Eli Wald, Russell G. Pearce

Faculty Scholarship

In response to past generations of debates regarding whether law is a business or profession, we advance an alternative approach that rejects the dichotomies of business and profession, or hired gun and wise counselor. Instead, we propose a relational account of law practice. Unlike frameworks grounded in assumptions of atomistic individualism or communitarianism, a relational perspective recognizes that all actors, whether individuals or organizations, have separate identities yet are intrinsically inter-connected and cannot maximize their own good in isolation. Through the lens of relational self-interest, maximizing the good of the individual or business requires consideration of the good of the …

Brady Misconduct Remedies: Prior Jeopardy And Ethical Discipline Of Prosecutors, J. Thomas Sullivan

Faculty Scholarship

In an Arkansas capital murder prosecution that resulted in conviction and sentences of death based on the killing of a family offour, defense counsel learned after the conviction had been reversed that a key prosecution witness, the defendant's son, who testified against his father, implicating him in the murders at trial, had also given prosecutors a statement in which he claimed responsibility for the crimes and exculpated his father. Defense counsel moved to dismiss the prosecution on the ground of prosecutorial misconduct, then raised a prior jeopardy claim in an effort to bar retrial by taking an interlocutory appeal to …

How Corporate Governance Is Made: The Case Of The Golden Leash, Matthew D. Cain Ph.D., Jill E. Fisch, Sean J. Griffith, Steven D. Solomon

Faculty Scholarship

This Article presents a case study of a corporate governance innovation — the incentive compensation arrangement for activist-nominated director candidates colloquially known as the “golden leash.” Golden leash compensation arrangements are a potentially valuable tool for activist shareholders in election contests. In response to their use, several issuers adopted bylaw provisions banning incentive compensation arrangements. Investors, in turn, viewed director adoption of golden leash bylaws as problematic and successfully pressured issuers to repeal them. The study demonstrates how corporate governance provisions are developed and deployed, the sequential response of issuers and investors, and the central role played by governance intermediaries …

Cross-Cultural Challenges, Consensus, And Opportunities For Advancing The Professional Ethical Integrity Of Legal System Actors, Rory Little

Faculty Scholarship

No abstract provided.

Juking Access To Justice To Deregulate The Legal Market, Milan Markovic

Faculty Scholarship

Study after study has concluded that the United States suffers from a lack of access to justice because most legal issues are addressed without attorney involvement. To better serve Americans who cannot currently afford legal assistance, scholars have argued that corporations should be permitted to offer legal services. England and Australia already allow corporations to own law firms and deliver legal services.

Whatever the merits of corporate delivery of legal services, its impact on access to justice has been overstated. The cost of legal services plays a minor role in decisions to not obtain legal assistance. Moreover, many legal services …

The Essential Monroe Freedman, In Four Works, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Family Defense And The Disappearing Problem-Solving Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts began to flourish in the early 1990s with the creation of criminal drug courts as alternatives to standard criminal court practices. In the drug courts, defendants would receive treatment rather than incarceration and be monitored closely within the court. Family Court Treatment Parts (FCTPs) were developed in the late 1990s in New York State, fully embracing the three key components of the problem-solving drug court model: (1) an activist judge who helps to fashion, and then closely monitor, dispositions; (2) a team of lawyers, social workers, and court personnel who try to identify and then work toward commons …

Open Letter On Ethical Norms In Intellectual Property Scholarship, Robin Feldman, Mark A. Lemley, Jonathan Masur, Arti K. Rai

Faculty Scholarship

As scholars who write in intellectual property (“IP”), we write this letter with aspirations of reaching the highest ethical norms possible for our field. In particular, we have noted an influx of large contributions from corporate and private actors who have an economic stake in ongoing policy debates in the field. Some dollars come with strings attached, such as the ability to see or approve academic work prior to publication or limitations on the release of data. IP scholars who are also engaged in practice or advocacy must struggle to keep their academic and advocacy roles separate.

Our goal is …

Duties To Organizational Clients, William H. Simon

Faculty Scholarship

Loyalty to an organizational client means fidelity to the substantive legal structure that constitutes it. Although this principle is not controversial in the abstract, it is commonly ignored in professional discourse and doctrine. This article explains the basic notion of organizational loyalty and identifies some mistaken tendencies in discourse and doctrine, especially the "Managerialist Fallacy" that leads lawyers to conflate the client organization with its senior managers. The article then applies the basic notion to some hard cases, concluding with a critical appraisal of the rationale for confidentiality with organizational clients.