Law Commons^™

Let's Be Honest About Law School Cheating: A Low-Tech Solution For A High-Tech Problem, Lori A. Roberts, Monica M. Todd

Akron Law Review

The savvy nature of academic cheating has outpaced educators racing to foil students’ high-tech high-jinx. Indeed, a culture of cheating in higher education has become pervasive, and even normalized. While problematic in all educational contexts, the implications of this erosion of academic integrity have particularly profound consequences in law school. There is no question that every law school has problems with cheating, but this Article is meant to cast doubt that engaging in a technological arms race with students to catch the cheaters is the best solution. Instead, a pedagogical commitment to teaching integrity in law school is a better …

Fictional Pleas, Thea Johnson

Indiana Law Journal

A fictional plea is one in which a defendant pleads guilty to a crime he has not committed, with the knowledge of the defense attorney, prosecutor, and judge. With fictional pleas, the plea of conviction is detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating noncriminal consequences. In this context, the …

Your Honor, On Social Media: The Judicial Ethics Of Bots And Bubbles, Katrina Lee

Nevada Law Journal

No abstract provided.

Legal Intelligence Through Artificial Intelligence Requires Emotional Intelligence: A New Competency Model For The 21st Century Legal Professional, Alyson Carrel

Georgia State University Law Review

The nature of legal services is drastically changing given the rise in the use of artificial intelligence and machine learning. Legal education and training models are beginning to recognize the need to incorporate skill building in data and technology platforms, but they have lost sight of a core competency for lawyers: problem-solving and decision-making skills to counsel clients on how best to meet their desired goals and needs. In 2014, Amani Smathers introduced the legal field to the concept of the T-shaped lawyer. The T-shaped lawyer stems from the concept of T-shaped professionals who have a depth of knowledge in …

Legal Analytics, Social Science, And Legal Fees: Reimagining "Legal Spend" Decisions In An Evolving Industry, Nancy B. Rapoport, Joseph R. Tiano Jr.

Georgia State University Law Review

To give you a feel for the power of legal analytics, imagine that you are the managing partner of a law firm. With a good set of algorithms and the push of a few buttons, you can make sure that you’ve delegated each part of an assignment to the professional with the exact combination of experience, talent, and diligence to maximize your firm’s client satisfaction and profitability. The client will be pleased both with the work product and its efficiency—and will pay your full bill without any grumbling or request for a reduction of the fees. The client will even …

Artificial Intelligence And Law: An Overview, Harry Surden

Georgia State University Law Review

Much has been written recently about artificial intelligence (AI) and law. But what is AI, and what is its relation to the practice and administration of law? This article addresses those questions by providing a high-level overview of AI and its use within law. The discussion aims to be nuanced but also understandable to those without a technical background. To that end, I first discuss AI generally. I then turn to AI and how it is being used by lawyers in the practice of law, people and companies who are governed by the law, and government officials who administer the …

Legal And Technical Issues For Text And Data Mining In Greece, Maria Kanellopoulou - Botti, Marinos Papadopoulos, Christos Zampakolas, Paraskevi Ganatsiou

Computer Ethics - Philosophical Enquiry (CEPE) Proceedings

Web harvesting and archiving pertains to the processes of collecting from the web and archiving of works that reside on the Web. Web harvesting and archiving is one of the most attractive applications for libraries which plan ahead for their future operation. When works retrieved from the Web are turned into archived and documented material to be found in a library, the amount of works that can be found in said library can be far greater than the number of works harvested from the Web. The proposed participation in the 2019 CEPE Conference aims at presenting certain issues related to …

Justifying Justice: Six Factors Of Wrongful Convictions And Their Solutions, Colby Duncan

Themis: Research Journal of Justice Studies and Forensic Science

There have been over 300 post-conviction DNA exonerations in the history of the United States. While this number may initially seem significant, there is still an unfathomable population of wrongfully convicted prisoners who have yet to be considered for retrials. Unaddressed wrongful conviction cases highlight the unacceptable weaknesses in the U.S. justice system, weaknesses that include poor investigative tactics and the acceptance or allowance of inaccurate and unreliable evidence. This paper will dutifully analyze the causes that lead to wrongful convictions and amply discuss potential solutions, all of which includes eyewitness misidentification, improper forensics, false confessions, informants, government misconduct, and …

Who Is The Client? Rethinking Professional Responsibility For Benefit Corporations, Joseph R. Pileri

Catholic University Law Review

A growing social enterprise movement has led companies to increasingly opt into the benefit corporation form, and those companies are hiring lawyers. Benefit corporations challenge the notion that corporate law’s primary focus is on furthering shareholder interests. While many have written about the benefit corporation with respect to corporate fiduciary law, this Article is the first to explore the form’s ethical implications for lawyers. Ethical obligations necessarily reflect substantive law governing client organizations; changes to the corporate form presented by benefit corporation legislation should reverberate in legal ethics. The legal profession, however, has not addressed how to lawyer to a …

Committee Of Bar Examiners, Samantha Steed, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

State Bar Of California, Ashley Kearney, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Syrian Crisis Representation In The Media: The Cnn Effect, Framing, And Tone, Savannah S. Day

Venture: The University of Mississippi Undergraduate Research Journal

Over the past seven years of the Syrian Civil War, Syrian refugees have been painted in a negative light by news media outlets around the world. History of media coverage regarding global humanitarian crises shows that with various tools and processes, media can shape public opinion and policy in whichever direction it desires, and oftentimes policymakers and the public are quick, as well as emotional, to react. In this paper, my objectives are to analyze specific examples of this CNN Effect phenomena within news coverage of the Syrian refugee crisis, as well as generally explain the negatively correlating relationship between …

Why Does The Sec Hate Lawyers And Will The Bitterness Ever Go Away: A Review Of The Reasons For The Current State Of This Relationship And A Proposed Path Forward, Ernest Edward Badway, Joshua Horn, Christie Mcguinness

Brooklyn Journal of Corporate, Financial & Commercial Law

The United States Securities and Exchange Commission (“SEC” or “Commission”) and its staff (“Staff”) have brought numerous actions against lawyers in a variety of contexts over the last several years. These enforcement actions have arguably prevented zealous advocacy as well as potentially leaving lawyers reluctant to make certain arguments on behalf of their clients so as to avoid potential disciplinary actions against them. While it is important for the Commission and its Staff to ensure that lawyers do not engage in violative conduct, this Article notes that the SEC and its Staff’s actions should be limited to only those occasions …

Improving Lawyers’ Health By Addressing The Impact Of Adverse Childhood Experiences, Karen Oehme, Nat Stern

University of Richmond Law Review

Although the legal profession has recognized the importance of improving attorneys’ mental health, it has largely ignored recent social and scientific research on how adverse childhood experiences (“ACEs”) can harm attorneys’ long-term well-being. This article reviews the science of ACEs and argues that law schools and the legal profession should educate law students and attorneys about the impact of prior trauma on behavioral health. Without such education, law schools and the legal system are missing a crucial opportunity to help lawyers prevent and alleviate the maladaptive coping mechanisms that are associated with ACEs. Until such knowledge is widespread, many lawyers …

Don't Delete That Tweet: Federal And Presidential Records In The Age Of Social Media, Gabriel M. A. Elorreaga

St. Mary's Law Journal

Statutes governing preservation of presidential records must be adapted to accommodate presidents’ evolving use of social media accounts. The Freedom of Information Act is meant to promote government transparency, and subjects governmental agencies to information requests from members of the public. However, as it relates to social media records, the problem is one of volume; are the means of preservation currently in place able to adequately address the vast amount of records created by a President’s use of social media? This Comment argues that they are not, although they do provide a useful basis for how to adapt record preservation …

Mr. Try-It Goes To Washington: Law And Policy At The Agricultural Adjustment Administration, Daniel R. Ernst

Fordham Law Review

In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration (AAA) but better known for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each required to interpret the same ambiguous language of a statute. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The …

May Federal Prosecutors Take Direction From The President?, Bruce A. Green, Rebecca Roiphe

Fordham Law Review

Suppose the president sought to serve as prosecutor-in-chief, telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president’s direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president …

Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa F. Grumet

Fordham Law Review

In all fifty states, the State Attorney General (SAG)—as the state’s chief legal officer—is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional—an action scholars describe as “nondefense”— the SAG ordinarily will disclose this decision to the public. This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus briefs that support invalidating other states’ laws …

Daca, Government Lawyers, And The Public Interest, Stephen Lee, Sameer M. Ashar

Fordham Law Review

On June 15, 2012, the Obama administration announced a significant change in immigration policy: Homeland Security Secretary Janet Napolitano began to instruct immigration officials to defer enforcement actions against those noncitizens who would likely be eligible for relief under the DREAM Act, should Congress choose to pass it. This program, which came to be known as Deferred Action for Childhood Arrivals (DACA), has become the most significant immigration-benefits program in a generation. Not since Congress passed a comprehensive reform bill in 1986, which included a pathway to citizenship, has an immigration program so quickly and positively changed the lives of …

Legal Dilemmas Facing White House Counsel In The Trump Administration: The Costs Of Public Disclosure Of Fisa Requests, Peter Margulies

Fordham Law Review

Not every presidential administration can forge a new brand of government lawyering. Historically, government lawyering has swung between two poles: (1) dialogic lawyering, which stresses reasoned elaboration, respect for institutions, and continuity with unwritten norms embodied in past practice; and (2) insular lawyering, which entails opaque definitions, disregard of other institutions, and departures from unwritten norms. Because President Trump regularly signals his disdain for institutions, such as the intelligence community, and unwritten norms, such as prosecutorial independence, senior lawyers in the White House have added a new mode of legal representation that entails ad hoc adjustments to President Trump’s mercurial …

Professionals, Politicos, And Crony Attorneys General: A Historical Sketch Of The U.S. Attorney General As A Case For Structural Independence, Jed Handelsman Shugerman

Fordham Law Review

Historically, the office of the U.S. Attorney General has been identified as “quasi-judicial” or having “quasi-judicial” aspects. Other parts of the Department of Justice (DOJ) have also been described as quasi-judicial, such as the Office of Legal Counsel and the Solicitor General. A glance at a list of past attorneys general seems to confirm this judicial aspiration in practice. Nine attorneys general became U.S. Supreme Court justices, and others were notably judicious and professional in their tenure in the office. Of course, there are some infamous examples of unprofessional cronyism—the appointment of friends or associates to positions of authority, without …

Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi

Fordham Law Review

The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers …

Prosecutorial Misconduct: Mass Gang Indictments And Inflammatory Statements, K. Babe Howell

Dickinson Law Review (2017-Present)

This Article examines inflammatory statements by prosecutors in the context of mass gang indictments. I contend that inflammatory remarks not only harm the justice system and defendants, particularly minorities, but also that, when prosecutors craft and repeat hyperbolic narratives about vicious gang wars, prosecutors may come to believe the narratives and become effectively blinded to the fact that these narratives are improper, unfair, and untrue. First, I review the professional rules, standards, and case law that prohibit. Then, drawing on press releases and trial transcripts from two mass gang indictments in New York City, I demonstrate how prosecution statements exaggerate …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

The Impact Of Prosecutorial Misconduct, Overreach, And Misuse Of Discretion On Gender Violence Victims, Leigh Goodmark

Dickinson Law Review (2017-Present)

Prosecutors are failing victims of gender violence as witnesses and when they become defendants in cases related to their own victimization. But it is questionable whether that behavior should be labeled misconduct. The vast majority of these behaviors range from misuses of discretion to things that some might consider best practices in handling gender violence cases. Nonetheless, prosecutors not only fail to use their discretion appropriately in gender violence cases, but they take affirmative action that does tremendous harm in the name of saving victims and protecting the public. The destructive interactions prosecutors have with victims of gender violence are …

The Policing Of Prosecutors: More Lessons From Administrative Law?, Aaron L. Nielson

Dickinson Law Review (2017-Present)

On a daily basis, prosecutors decide whether and how to charge individuals for alleged criminal conduct. Although many prosecutors avoid abusing this authority, prosecutors’ discretionary decisions might result in biased enforcement, inappropriate leveraging of authority, and a lack of transparency. These problems also arise when agency enforcement officials decide whether to act on conduct that violates a legal prohibition.

An inherent tension between the desire to avoid overburdening the system and the need to prevent inconsistent decision-making exists in the exercises of both prosecutorial discretion and regulatory enforcement discretion. It is clear from the similarities between the two that administrative …

Prosecutorial Discretion: The Difficulty And Necessity Of Public Inquiry, Bruce A. Green

Dickinson Law Review (2017-Present)

Prosecutors’ discretionary decisions have enormous impact on individuals and communities. Often, prosecutors exercise their vast power and discretion in questionable ways. This Article argues that, to encourage prosecutors to use their power wisely and not abusively, there is a need for more informed public discussion of prosecutorial discretion, particularly with regard to prosecutors’ discretionary decisions about whether to bring criminal charges and which charges to bring. But the Article also highlights two reasons why informed public discussion is difficult—first, because public and professional expectations about how prosecutors should use their power are vague; and, second, because, particularly in individual cases, …

Lawyers In Government Service—A Foreword, Bruce A. Green

Fordham Law Review

Lawyers in government serve in many different roles, both representational and nonrepresentational. Some represent the federal, state, or local government, a particular governmental entity (such as a department of consumer affairs) or agency (such as the NLRB), or public officials in their official capacity. These lawyers render a range of legal services and act as litigators, negotiators, drafters, and counselors. Other lawyers in government serve in nonrepresentative capacities; for example, as elected or appointed officials or as their aides. Scholarship on government lawyers addresses these varied roles and functions from varied perspectives, drawing on different bodies of law and legal …

Law And Nonlegal Norms In Government Lawyers' Ethics: Discretion Meets Legitimacy, W. Bradley Wendel

Fordham Law Review

This Essay is about the role of unwritten norms in the ethical decisionmaking of government lawyers. Because the ethical obligations of lawyers, including government lawyers, are closely tied to the legal rights and obligations of clients, this analysis necessarily depends on understanding the relationship between written law and unwritten norms. As we all know, however, written law leaves gaps, ambiguities, and zones of unregulated discretion. Prosecutors in the United States, for example, have virtually unreviewable discretion to decide who to investigate and charge, what charges to bring, and whether to offer immunity in exchange for cooperation. No one has a …