Law Commons^™

Temptation's Page Flies Out The Door: Navigating Complex Systems Of Disability And The Law From A Therapeutic Jurisprudence Perspective, Michael L. Perlin, Mehgan Gallagher

Articles & Chapters

This article considers the difficulties inherent in the navigation of the legal system and the disability system, difficulties made more complicated when these systems intersect. Although this problem is not a new one, remarkably, it has never been the subject of any legal scholarship. We argue here that it is futile to consider either system to be a uniform one, and that to make any sense of the underlying ambiguities, it is necessary to consider both the potential conflicts both between domestic and international law (using fitness to proceed to trial as a case example), and the conflicts between social …

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

Articles & Chapters

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 …

Civility Reboot: Can Lawyers Learn To Be Nicer To One Another, Heidi K. Brown

Articles & Chapters

No abstract provided.

Training Powerful Legal Communicators: What Does The Future Hold, Nicholas W. Allard, Heidi K. Brown

Articles & Chapters

No abstract provided.

Distilling Fear, Heidi K. Brown

Articles & Chapters

No abstract provided.

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

Articles & Chapters

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 …

Visual Literacy For The Legal Profession, Richard K. Sherwin

Articles & Chapters

Digital technology has transformed the way we communicate in society. Swept along on a digital tide, words, sounds, and images easily, and often, flow together. This state of affairs has radically affected not only our commercial and political practices in society, but also the way we practice law.

Unfortunately, legal education and legal theory have not kept up. Inconsistencies and unpredictability in the way courts ascertain the admissibility of various kinds of visual evidence and visual argumentation, lapses in the cross examination of visual evidence at trial, and inadequately theorized notions of visual meaning and the epistemology of affect tell …

Teaching Legal Technology, Camille Broussard, Kathleen Brown, Daniel Cordova, Sarah Mauldin

Articles & Chapters

No abstract provided.

Can Government Lawyers Be Heroes?, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Promoting Dignity And Preventing Shame And Humiliation By Improving The Quality And Education Of Attorneys In Sexually Violent Predator (Svp) Civil Commitment Cases, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

In Strickland vs. Washington, the Supreme Court acknowledged that the role of counsel is critical to the ability of the adversarial system to best insure that just results are produced. Yet, the Court did not elaborately define the Sixth Amendment constitutional right to counsel and lower courts, have set the bar shockingly low.

In this article we examine the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and conclude that a failure to apply a higher standard of adequate counsel – beyond what was set out in Strickland – results in humiliation, shame and lack of dignity …

The Practice - And Rule - Of Law, Stephen Ellmann

Articles & Chapters

No abstract provided.

Said I, But You Have No Choice: Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context.

Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and …

Redefining Professionalism, Rebecca Roiphe

Articles & Chapters

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community …

Tilting At Stratification: Against A Divide In Legal Education, Rebecca Roiphe

Articles & Chapters

Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. This idea is not new. A similar proposal emerged in the early twentieth century. This article draws on the historical debate to argue that this simplistic approach cannot solve the myriad problems facing the legal profession and legal education. Supporters of separate tiers of law school rely on a caricature of the early history to argue that the Bar is acting in a protectionist way to ensure its own monopoly and keep newcomers …

Revolution Imagined: Cause Advocacy, Consumer Rights, And The Evolving Role Of Ngos In Thailand, Frank W. Munger

Articles & Chapters

This article describes the founding and evolution of a “Thai-style” NGO dedicated to consumer protection. Through a description of the NGO and the career of its founder, the article brings to light features of the evolution of NGO based advocacy in Thailand from the student uprising in 1973 to the present. The legacy of the 1973 October Generation of activists continues to influence development of NGOs but new emphasis on rights has emerged since the era of constitutional reform in the 1990s. Many NGOs now make use of litigation to attempt to achieve social change, but litigation, like other long-standing …

The Forgotten Promise Of Professionalism, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Alternatives For Scheduling The Bar, Mary Campbell, Carol A. Buckler

Articles & Chapters

No abstract provided.

Visual Jurisprudence, Richard Sherwin

Articles & Chapters

Lawyers, judges, and jurors face a vast array of visual evidence and visual argument inside the contemporary courtroom. From videos documenting crimes and accidents to computer displays of their digital simulation, increasingly, the search for fact-based justice is becoming an offshoot of visual meaning making. But when law migrates to the screen it lives there as other images do, motivating belief and judgment on the basis of visual delight and unconscious fantasies and desires as well as actualities. Law as image also shares broader cultural anxieties concerning not only the truth of the image, but also the mimetic capacity itself, …

A History Of Professionalism: Julius Henry Cohen And The Professions As A Route To Citizenship, Rebecca Roiphe

Articles & Chapters

This paper revives the notion that professionalism and the legal profession can serve as a mechanism for immigrants and those who are not born into wealth or privilege to achieve status. I draw on the example of Cohen, a Jewish lawyer who achieved a great deal of success within the profession in the early 20th Century, to argue that the rhetoric surrounding the professions allows immigrants and others to use professional success to find their way to full inclusion and citizenship. While acknowledging the merits of the critiques of the professions as rent-seeking cartels, I argue that professionalism is an …

The Silent But Gifted Law Student: Transforming Anxious Public Speakers Into Well-Rounded Advocates, Heidi K. Brown

Articles & Chapters

The premise of this Article is that a certain cluster of students in every law school experiences severe public speaking anxiety (as contrasted with standard low-grade nerves) — whether because of childhood upbringing, adolescent or college experiences, or new environmental triggers — and needs support to gain control of this fear instead of repressing it as a perceived weakness. This Article proposes that, with the right level of awareness and a thoughtful psychological approach, law schools can, and should, develop programs to assist students in overcoming this stumbling block. To do so, law professors first must understand that it is …

What We Are Learning, Stephen Ellmann

Articles & Chapters

No abstract provided.

Raising The Bar: Standards-Based Training, Supervision, And Evaluation, Adele Bernhard

Articles & Chapters

In this short Article, I sketch the methodology my colleagues and I at Pace Law School use to incorporate practice standards into our clinical teaching and reflect on how a standards-based teaching paradigm could be adapted to the training, supervision, and evaluation of public defenders. Then, I briefly consider how standards and standards-based teaching assist in the administration of assigned counsel plans and in the evaluation of the performance of public defender organizations. Although this Article does not cover any of these topics in depth, my goal is to introduce the reader to a standards-based approach to teaching and suggest …

Sim City: Teaching “Thinking Like A Lawyer” In Simulation-Based Clinical Courses, Kris Franklin

Articles & Chapters

No abstract provided.

Fighting For The City In Context: William Nelson And The Legal History Of New York, William P. Lapiana

Articles & Chapters

Professor Ross Sandler has contributed a full review of Fighting for the City to this symposium issue. This short comment is meant to supplement that review by emphasizing topics that are of particular interest to an historian of the American legal profession, and of American legal education in particular and New York City in general. It is also meant to draw some connections between Fighting for the City and two of Professor William Nelson's other works: In Pursuit of Right and Justice, his biography of Edward Weinfeld, a lawyer and judge of the District Court for theSouthern District of New …

Globalization, Investing In Law, And The Careers Of Lawyers For Social Causes—Taking On Rights In Thailand, Frank W. Munger

Articles & Chapters

No abstract provided.

Lawyering At The Extremes: The Representation Of Tom Mooney, 1916-1939, Rebecca Roiphe

Articles & Chapters

This article explores the complex and often strained relationship between Tom Mooney, the famous labor radical who was framed for a bombing murder, and his lawyers over the course of the 23-year long battle to gain his freedom. The author uses the lawyers’ archives to explore the intense difficulties that arise between a client who believes the legal system is hopelessly corrupt and his lawyers who hope to free their client and redeem the justice system at the same time. While sympathetic to Tom Mooney and the lawyers, Roiphe concludes that an independent legal profession struggling to negotiate its obligation …

Global Funder, Grassroots Litigator—Judicialization Of The Environmental Movement In Thailand, Frank W. Munger

Articles & Chapters

No abstract provided.

See Erie: Critical Study Of Legal Authority, Kris Franklin

Articles & Chapters

No abstract provided.

Introduction, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Baby, Look Inside Your Mirror: The Legal Profession's Willful And Sanist Blindness To Lawyers With Mental Disabilities, Michael L. Perlin

Articles & Chapters

The legal profession has notoriously ignored the reality that a significant number of its members exhibit signs of serious mental illness (and become addicted or habituated to drugs or alcohol at levels that are statistically significantly elevated from levels of the public at large). This is no longer news. What has not been explored is why so much of the bar has remained willfully ignorant of these realities, and why it refuses to confront the depths of this problem.

The roots of this puzzle are found in the social attitude of sanism, an irrational prejudice of the same quality and …