Law Commons^™

The Death Of Big Law, Larry E. Ribstein

Larry E. Ribstein

Large law firms face unprecedented stress. Many have dissolved, gone bankrupt or significantly downsized in recent years. This paper provides an economic analysis of the forces driving the downsizing of Big Law. It shows that this downsizing reflects a basically precarious business model rather than just a shrinking economy. Because large law firms do not own durable, firm-specific property, a set of strict conditions must exist to bind the firm together. Several pressures have pushed the unraveling of these conditions, including increased global competition and the rise of in-house counsel. The large law firm’s business model therefore requires fundamental restructuring. …

Attorney Negotiation Ethics: An Empirical Assessment, Art Hinshaw

Art Hinshaw

The code of ethical conduct for lawyers -- the American Bar Association’s Model Rules of Professional Conduct (the “Model Rules”) -- legitimizes a certain amount of dissembling and misdirection in the negotiation realm, only prohibiting legal negotiators from making fraudulent misrepresentations about material matters. To determine if attorneys are meeting this low standard, the authors surveyed practicing lawyers and asked them if they would agree to engage in a fraudulent pre-litigation settlement scheme if a client requested them to do so. Nearly one-third of the respondents indicated they would agree to the client’s overtures, and only half indicated that they …

Seeking The St. Thomas Effect: Law School Mission And The Formation Of Professional Identity, Jennifer Wright

Jennifer Wright

Law schools have long prided themselves on their ability to train law students to “think like lawyers”. Many law schools and faculty deny that they do or should play any role in the formation of students’ professional and moral identities. Recent events point to the high social costs imposed by lawyers and judges who demonstrate no professional allegiance beyond pleasing the client or employer and maximizing the bottom line. Our legal system and our society as a whole depend upon ethical and professional behavior on the part of our lawyers and judges. Recent studies have challenged law schools’ rejection of …

Harder, Better, Faster Stronger: Regulating Illicit Adderall Use Among Law Students And Law Schools, Jennifer Schiffner

Jennifer Schiffner

The widespread illicit use of Adderall as a performance enhancer raises significant challenges for law schools and for law students entering the legal profession. Adderall, a stimulant-based performance enhancer prescribed for those with juvenile and adult attention deficit (ADD) and attention-deficit hyperactivity disorder (ADHD), increases a person’s ability to concentrate by stimulating the production of dopamine and norepinephrine in the brain. Taken without a prescription for ADD or ADHD, Adderall over-stimulates the brain allowing for super-enhanced focus with a simple pill. For law students, the allure of this Controlled Substances Act Schedule II drug is simple: efficiency. However, despite easing …

Establishing Guidelines For Attorney Representation Of Criminal Defendants At The Sentencing Phase Of Capital Trials, Adam Lamparello

Adam Lamparello

No abstract provided.

A Critical Survey Of The Law, Ethics And Economics Of Attorney Contingent Fee Arrangements, Adam Shajnfeld

Adam Shajnfeld

This Article presents a critical survey of the law, ethics and economics of contingent fee arrangements for legal representation. First, it introduces the contingent fee, its history, and the various forms it takes. Second, it discusses and proposes changes in the use (or prohibition) of contingent fees in criminal, domestic relations and corporate matters. Third, it explores the concept of risk and its effect on legal fees, and analyzes various proposals that aim to reform risk-insensitive and uncompetitive pricing. Fourth, it examines agency problems in the attorney-client relationship that may be affected by fee arrangements, and makes suggestions for overcoming …

Assessing The Foundations Of Neo-Classical Professionalism In Law And Business: Remodeling The Temple, Phase I, Robert E. Atkinson

Robert E. Atkinson Jr.

Both the management of private enterprise and the practice of corporate law must be radically remodeled if they are properly to serve their correlate values: prosperity and justice. In that remodeling, the cornerstone of professional status would be appreciation of the deepest values of our common culture, gained through liberal education in the humanities and social sciences. Lawyers and managers need this appreciation because, under the best available institutional arrangements, they together must actively shape our public world, both in the law and in the market, for the common welfare.

The professional’s requisite cultural appreciation has two essential components, one …

Multijurisdictional Practice And The Influence Of Model Rule Of Professional Conduct 5.5 - An Interim Assessment, Arthur F. Greenbaum

Arthur F Greenbaum

In adopting Model Rule 5.5 the ABA hoped to both modernize the standards for multijurisdictional practice, and to promote greater uniformity in the states with respect to such practice. While the ABA’s efforts have borne substantial fruit, the degree to which these goals have been met is often overstated. In this article, I explore in depth the influence Model Rule 5.5 has had on the states, the degree of variation that remains, and the unintended consequences that may flow from this reform effort.

Studying And Teaching "Law As Rhetoric": A Place To Stand, Linda L. Berger

Linda L. Berger

This article proposes that law students may find a better fit within the legal culture of argument if they are introduced to rhetorical alternatives to counter narrowly formalist and realist perspectives on how the law works and how judges decide cases. The article makes a two-part argument: first, introducing law students to rhetorical alternatives allows them to envision their role as lawyers as constructive, effective, and imaginative while grounded in law, language, and reason. Second, offering rhetorical alternatives allows law professors to enrich their own study and teaching and to develop a more nuanced understanding of the law school classroom …

Legal Fictions And Juristic Truth, Nancy J. Knauer

Nancy J. Knauer

This Essay cautions against the revisionist trend in legal scholarship to dismiss discredited legal regimes and burdensome statutory schemes as mere "legal fictions." In the first instance, the expansive view of legal fictions employed in this new scholarship dilutes the analytic force of the classic definition proposed by Lon L. Fuller. More importantly, it misapprehends the constitutive power of law and the nature of juristic truth. The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John Lande, Jean R. Sternlight

John Lande

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes. Recognizing these substantial barriers, it proposes a modest and feasible menu of reforms that interested faculty and law schools can achieve without investing substantial additional resources. The proposals are not intended as a comprehensive package to be implemented on an all-or-nothing basis but as a set of options to be selected by individual faculty …

Collaborative Lawyers’ Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients’ Informed Consent To Use Collaborative Law, John Lande, Forrest S. Mosten

John Lande

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. In CL, the lawyers and clients sign a “participation agreement” promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the “disqualification agreement,” which provides that both CL lawyers would be disqualified from representing the clients if the case is litigated. CL is designed to encourage parties to stay in the process which can be good, though sometimes parties feel stuck there, having invested thousands of dollars and at risk of …

Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency-Fee Environmental Special Counselor Arrangement, Julie E. Steiner

Julie E. Steiner

There is developing phenomenon of quasi-privatized environmental enforcement occurring on behalf and in the name of governments by entrepreneurial attorneys who substitute in place of the public enforcers and derive professional payment from a contingent fee withdrawn from the public’s environmental damage award. This Article addresses the question of whether governments should permit private attorneys to handle these “substitute environmental special counsel” enforcement arrangements. In so doing, the Article weighs the arrangement’s costs and benefits from the standpoint of whether it maximizes the deterrence and restorative compensation goals of environmental enforcement.

Governments are often the only entities with standing to …

Necessary Third Parties: Multidisciplinary Collaboration And Inadequate Professional Privileges In Domestic Violence Practice, Jeffrey R. Baker

Jeffrey R Baker

The rise of multidisciplinary practices among public-interest lawyers and other professionals promotes more effective and thorough services for vulnerable clients. In various forms, these professionals are creating formal or ad hoc partnerships as they minster to whole clients, not just to a client’s peculiar, momentary problem. For a victim of domestic violence, these collaborations can yield better outcomes and fruitful service, but they may also be critical to her very survival. As the common client works to escape a violent, oppressive relationship, her diverse professional servants must address the acute conflation of legal, medical, psychological, emotional and financial crises that …

The Law Professor As Counterterrorist Tactician, Lawrence Rosenthal

Lawrence Rosenthal

This essay responds to Professor Aziz Huq's provocative article, "The Signaling Function of Religious Speech in Domestic Counterterrorism." Professor Huq contends that current counterterrorist doctrine overemphasizes the use of religious speech as a "signal' for incipient terrorist violence. He argues that the costs of this approach for religious liberty are significant, and its reliability suspect. Professor Huq's assessment of costs, however, overlooks that current doctrine permits only initiation of an investigation on the basis of religous speech, while even Professor Huq's suggested reforms would require consideration of a potential investigative subject's speech if they were operationalized. His proposals might make …

It's All About The People: Creating A "Community Of Memory" In Civil Procedure Ii, Part One, Jennifer E. Spreng

Jennifer E Spreng

In Fall 2008, a nascent classroom community emerged among my Civil Procedure students, teaching assistants and I. That term’s adventure eventually became the vital “past” for the fully formed community that would knit students of future classes together as one.

The genesis of this early classroom community was my ideal of “the good lawyer” as the small-firm or small-jurisdiction practitioner I had known as a seven-year solo practitioner in a town of 50,000 people. That ideal was a combination of “the rhythms of the law” that run throughout the specialties; a more respectful and less stratified model of professionalism, and …

The Psychology Of Hope: Legal Educators Must Strengthen Students' "Waypower" To Succeed, Cassandra L. Hill

Cassandra L. Hill

The power of hopeful thinking is often undervalued. According to C.R. Snyder, the father of hope theory, hope reflects a mental set in which we have the willpower to move toward a goal and the “waypower” or mental capacity to devise effective methods, plans, or paths to reach that goal. Both the willpower to succeed and the waypower to solve problems are required to have a truly hopeful attitude. Applying this formula to legal education, if law students lack either the willpower or the waypower for their goals, they cannot have high hope to succeed. And hope is a key …

Lawyers And The Power Of Community: The Story Of South Ardmore, Corey S. Shdaimah

Corey S Shdaimah

Community organizing and lawyering have often been seen as incompatible. Lawyers are said to take over, many legal remedies are not amenable to and even dampen lay participation, and legal efforts can siphon money and other scarce resources. However, community organizations choose to seek out legal assistance for the benefits it provides despite their awareness of the dangers of working with lawyers and engaging the law. Much of the more recent literature shows that lawyers working with community organizations are also sensitive to these potential risks and benefits. This article presents the author’s efforts to organize her South Ardmore community …

Pro-Prosecution Judges: "Tough On Crime," Soft On Strategy, Ripe For Disqualification, Keith Swisher

Keith Swisher

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures. Building on this description and the work of empiricists, …