Law Commons^™

Paul V. The Clintons, Et Al: Fec Complicity And A Plea For Real And Present Campaign Finance Reform, Ellis Washington

Ellis Washington

This Article is an analysis of current legislation, case law and election law policy regarding campaign finance disclosure rules and the need for a truly independent Federal Election Commission to efficiently enforce existing election laws. Admittedly, this article isn’t as theoretical as other scholarly works on this subject, however, since campaign finance reform is a rather complex subject, I didn’t want to get caught up in the endless minutiae of legislative and court opinion other than a general review in the context of the case at bar as well as the present state of campaign finance reform policy. I also …

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

Jennifer Wright

The legal profession has long been criticized for declining standards of professionalism. Recent studies have pointed to the crucial role of legal education in forming the professional identity of lawyers. Law schools must take seriously their duty to intentionally and thoughtfully shape their students’ sense of what it means to be a lawyer and of how their professional identities will align and coexist with their other personal and ethical commitments. In this article, I examine a case study of one law school, the University of St. Thomas School of Law, whose self-proclaimed raison d’etre is to produce a “different kind …

Contempt For The Rights Of Man: The Role Of Prosecutorial Misconduct In Virginia Capital Cases, Fay F. Spence

Fay F Spence

From reinstatement of the death penalty in Virginia in 1977, until January 2001, 132 Virginia defendants have been sentenced to death. Approximately 70% of the federal post-conviction proceedings in these cases allege some form of prosecutorial misconduct. This article discusses the appellate and post-conviction treatment of the prosecutorial misconduct allegations in each of these cases. Three cases were actually reversed because of misconduct. Courts recognized prosecutorial misconduct in another 14 cases, but held it to be “harmless error.” In 32 of the cases, the courts refused to address the allegations of misconduct, finding the issue to be “procedurally defaulted.” In …

The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial …

Pro Bono Publico As A Conscience Good, Deborah A. Schmedemann

Deborah Schmedemann

Pro bono work performed by American lawyers serves a critical role in the American civil justice system. This paper seeks to explain pro bono through the lens of social science research into volunteering, in particular the economic concept of a conscience good. The paper presents the results of an empirical study involving over 1,100 law students and lawyers. The results include data on lawyers’ motivations to perform pro bono, the impact of various pro bono rules and invitations to perform pro bono, the satisfactions of pro bono work, emotions triggered by pro bono work and pro bono clients, and the …

Pro Bono Publico As A Conscience Good, Deborah A. Schmedemann

Deborah Schmedemann

Pro bono work performed by American lawyers serves a critical role in the American civil justice system. This paper seeks to explain pro bono through the lens of social science research into volunteering, in particular the economic concept of a conscience good. The paper presents the results of an empirical study involving over 1,100 law students and lawyers. The results include data on lawyers’ motivations to perform pro bono, the impact of various pro bono rules and invitations to perform pro bono, the satisfactions of pro bono work, emotions triggered by pro bono work and pro bono clients, and the …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

Suicide, Law And Morality, Edward Rubin

Edward Rubin

Dear Editors,

The enclosed article argues that blanket prohibitions against assisted suicide are unconstitutional. This position has been advanced by a number of commentators, who have generally based their argument on the so-called right to die. From a constitutional perspective, however, this right can only be grounded on either substantive due process or the right of privacy, that is, the penumbra of the first eight amendments. While the argument isn’t necessarily wrong, it suffers from its reliance on aggressive and controversial interpretations of the constitutional text.

The position this article advances is that prohibitions against assisted suicide violate the First …

The Global Advocate: From Ethical Anarchy To Discernable Duties, Catherine A. Rogers

Catherine A Rogers

This Article identifies the emergence of "global advocates" as an important force on the world legal stage. By definition and design, these global advocates operate in a professional “space” that is distinct from the jurisdiction in which they are licensed and stretches beyond the jurisdictional boundaries of any particular tribunal. They maneuver in the nooks and crannies, the overlap and the inconsistencies between legal systems. Legal arbitrage is a core feature of their daily practice, and perhaps one of their most essential professional skills. This detachment from their licensing jurisdiction raises fundamental questions about the origin and object of their …

Curriculum Reform In Context, 1870-2008: Understanding And Overcoming The Limitations Of Contemporary Legal Education, William A. Langer

William A Langer

Curriculum Reform in Context, 1870-2008: Understanding and Overcoming the Limitations of Contemporary Legal Education

William Langer

In 2006, the law schools at Harvard and Stanford announced plans to implement innovative reforms to their traditional legal curricula. While the two law schools’ reform programs are quite different from one another, they both proceed on the premise that legal education has not kept pace with the changes that have taken place in the law, the legal profession, and the global economy over the last several decades, and that the traditional form of legal education, centered around the “case method,” has long been …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

The New Boys: Women With Disabilities And The Legal Profession, Carrie G. Basas

Carrie G Basas

This essay fuses the fields of law, feminist theory, and cultural studies to examine the status of women attorneys with disabilities. It is the first study of its kind in the United States. The author conducted an empirical, qualitative, and ethnographic study of women attorneys with disabilities in the United States. Thirty-eight attorneys participated and their narratives form the basis for critical analysis of disability animus and discrimination in the legal profession. The results show an alarming trend toward disabled women attorneys self-accommodating in the workplace, rather than enforcing their employment rights under the Americans with Disabilities Act. Relying on …

Judicial Reporting Of Lawyer Misconduct, Arthur F. Greenbaum

Arthur F Greenbaum

It has long been recognized that judges can and should play a central role in the lawyer disciplinary process by reporting substantial lawyer misconduct they observe to disciplinary authorities. Despite the nearly 20-year existence of a mandatory reporting rule in such instances, the conventional wisdom suggests that the rule often is not followed. While the 2007 revision of the ABA Model Code of Judicial Conduct provided a golden opportunity to address this problem, the process resulted in little more than a hortatory reaffirmation of the basic principle. There is a better path.

In this essay, I thoroughly analyze the costs …

Will Globalization Be The Death Knell For The Corporate Attorney-Client Privilege In The U.S.? An Opportunity To Re-Examine The Privilege As It Applies To In-House Counsel, Lawton P. Cummings

Lawton P Cummings

Increasingly, enforcement authorities from around the world are engaging in multinational cooperation to investigate and prosecute companies suspected of competition law violations. While corporate investigations have globalized, privilege rules remain localized. While the U.S. recognizes the attorney-client privilege for communications with in-house counsel, several jurisdictions that cooperate with the U.S. in multi-national investigations do not recognize the privilege for such communications. This results in identical evidence receiving un-equal privilege status in parallel proceedings around the globe. Currently, the U.S. is more protective of communications with in-house counsel than many other jurisdictions, disadvantaging U.S. prosecuting authorities as well as civil plaintiffs …

“Once Upon A Time, In A Land Far, Far Away . . .” Lawyers And Clients Telling Stories About Ethics (And Everything Else), Carolyn Grose

carolyn grose

ABSTRACT

Framed by an analysis of two particular ethical rules and their application to specific situations, this piece uses the metaphor of storytelling to explore the lawyer’s role as an effective and ethical client representative. Drawing from the experiences of two sets of clients and their lawyers, the piece proposes an approach to ethical regulation (as one component of the lawyer-client relationship) that requires the lawyer to engage in a deeply contextual analysis of the specific and particular ethical conflicts presented to him in any particular case; and work with his client to determine how to resolve those conflicts.

The …

Avoiding The 'Secret Sentence': A Model For Ensuring That New Jersey Criminal Defendants Are Advised About Immigration Consequences Before Entering Guilty Pleas, Joanne Gottesman

Joanne Gottesman

Reforms over the past decade have transformed the immigration law landscape and have led to more noncitizens than ever being subject to removal for less serious crimes than in the past. As a result of these changes, proper counseling of noncitizen criminal defendants is more critical than ever. This article examines the current state of the law in New Jersey regarding immigration related ineffective assistance of counsel claims and the responsibility of criminal defense attorneys to advise noncitizen clients about immigration consequences. It recommends judicial, legislative, and professional changes to better ensure that noncitizen defendants are properly advised about immigration …

The Lawyer’S Duty To Inform His Client Of His Own Malpractice, Benjamin P. Cooper

Benjamin P Cooper

Every big-firm litigation partner has received the call from his colleague in the corporate department: “The big deal that I was working on fell apart, and now the client has been sued. Can you handle the litigation?” While this turn of events is not good news for the client, it is not necessarily bad news for the law firm, which may now be looking forward to lengthy litigation and big fees. Because of that, the litigation partner’s response is usually the same – he says, “yes,” and simply assumes that his partner was not the cause of the litigation or …

Reconceptualizing Competence: An Appeal, Mae C. Quinn

Mae C. Quinn

This article builds on contemporary critiques of the justice system’s treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed -- the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach to defendant capacity not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of …

"Old And Making Hay:" The Results Of The Pro Bono Institute Survey On The Viability Of A "Second Acts" Program To Transition Attorneys To Retirement Through Pro Bono Work, Kenneth G. Dau-Schmidt

Kenneth G. Dau-Schmidt

In his 1998 Fairchild Lecture, Professor Marc Galanter proposed the idea that senior attorneys should be encouraged to undertake “a second ‘public service’ career” as a way of transitioning to retirement. The logic for encouraging such “Second Acts” in lawyers’ careers is compelling. As Professor Galanter has demonstrated, in the coming years, there will be record numbers of attorneys navigating the transition to retirement as the “Baby Boomers” reach their golden years. This substantial body of highly skilled lawyers could have a significant impact on fulfilling unmet needs for legal representation. If even 5% of the practicing attorneys over sixty-five …

Government Lawyer As Cause Lawyer: A Study Of Three High Profile Government Lawsuits, Steve Berenson

Steve Berenson

Over the past decade a broad and deep literature has developed mapping the contours of the work of cause lawyers – those lawyers who attempt to use the law to achieve social change objectives. However, very little of that literature addresses the work of government lawyers. At first blush, this makes perfect sense. After all, when they defend government officials charged with wrongdoing, or statutes and regulations charged with illegality, government lawyers are the ultimate representatives of the status quo. However, in other contexts, government lawyers may initiate cases that have social change objectives. Indeed, some of these cases bear …

On The Nature Of Forgiveness And Vengeance, Theodore Y. Blumoff

Theodore Y. Blumoff

The traditional formal view of forgiveness holds that it belongs only to the individual aggrieved, and that it reflects the injured individual’s effort to deal cognitively and emotionally with the conduct that triggered the sense of undeserved devaluation. In the standard canon, forgiveness also represents a more sober response to a basic desire for vengeance. In this article, I put forgiveness into an evolutionary perspective, arguing that forgiveness began with a more simple biological reactions like kinship selection and biological altruism, forces of nature that, happily, often prevent us from giving full reign to our edgiest impulses. Forgiveness should be …

"And I Would Have Gotten Away With It Too, If It Hadn't Been For You Meddling Kids And Your Dog," Uh, I Mean Legal Ethics Rules: A Proposal For Rules Requiring Disclosure Of Attorney "Ghostwriting" Of Pro Se Litigants' Court Documents And Allowing Limited Appearances For Such Attorneys, Michael W. Loudenslager

Michael W. Loudenslager

More and more pro se litigants are making their way to the courthouse. Pro se litigants have become common especially in state housing and family law courts and in federal bankruptcy court. In response, a growing number of attorneys have started providing unbundled or limited scope legal services to these litigants. This involves a client hiring an attorney to perform a discrete task in a lawsuit and nothing else. One particular form of discrete task legal services involves attorney “ghostwriting.” In such arrangements, an attorney drafts pleadings or other court documents for pro se litigants. However, the legal assistance that …

Not For Love Or Money: Appointing A Public Defender To Litigate A Claim Of Ineffective Assistance Involving Another Public Defender, Christopher M. Johnson

Christopher M Johnson

This article explores whether public defenders can litigate claims of ineffective assistance of counsel involving an affiliated public defender as the claim’s target. Courts in different states have reached different conclusions on that question. Some courts treat public defenders as sufficiently different from private practitioners as to justify a different conflict of interest rule, and allow such representation. Other courts disagree, and bar public defenders from litigating such a claim to the same extent that they would bar a private practitioner litigating a claim involving a partner as the claim’s target. The dispute raises important questions about the nature of …

Shari'ah's Black Box: Civil Liability And Criminal Exposure Surrounding Shari'ah-Compliant Finance, David Yerushalmi

David Yerushalmi

This article examines the multitude of legal issues - both criminal and civil - that Shari'ah-compliant finance (SCF) presents to U.S. financial institutions and their professional advisers. In short, SCF is the practice of investing in conformity with Islamic law (Shari'ah). Such investment appears at first glance innocuous. With only a modicum of probing, however, SCF turns out to be a black box, where the financial industry and their legal professionals have hidden a doctrine at war with the West and have ignored the dangers and risks posed by Shari'ah authorities who determine the rules and principles of this industry. …

Government Lawyers In The Liberal State, W. Bradley Wendel

Cornell Law Faculty Working Papers

Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately …

Neither Saints Nor Devils: A Behavioral Analysis Of Attorneys' Contingent Fees, Eyal Zamir, Ilana Ritov

Eyal Zamir

The market for legal services, and particularly lawyers’ Contingent Fee (CF) arrangements, have been extensively studied from legal, economic and sociological standpoints, but curiously not from a behavioral perspective. Building on Kahneman and Tversky’s Prospect Theory, this paper presents a series of experiments designed to reveal people’s preferences regarding attorneys’ fees and their perceived fairness.

Contrary to common economic wisdom, we demonstrate that loss aversion (rather than risk aversion or incentivizing the lawyer to win the case) plays a major role in clients’ preferences for CF. Facing a choice between a mixed “gamble” and a pure positive one, plaintiffs prefer …

Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Schaffzin

Katharine Traylor Schaffzin

The common interest doctrine offers many time and cost-saving advantages to clients. It also carries with it the consequence that counsel representing a party to a common interest group accept ethical or fiduciary responsibilities on behalf of the other members of that group. This pseudo-attorney-client relationship may limit an attorney's abilities to fulfill her ethical obligations to her client. This article explores the mechanisms for protecting the client and the attorney before entering a common interest arrangement.

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

Election Day At The Bar, Allison Hayward

Allison Hayward

Abstract: Election Day At The Bar Allison R. Hayward Since the 2000 election, national parties and a number of special interest groups have changed how they “lawyer up” for election day. They recruit nationally for attorneys to work in whatever “hot spots” develop. Yet in key jurisdictions their activities may amount to the unauthorized practice of law (“UPL’) UPL discipline of these attorneys may seem unlikely so long as all participants in elections desire to mobilize these volunteers. Yet enforcement could be triggered once local interests who rely on suppression or fraud recognize that outside volunteers will cause them to …

Representing Children Representing What?, Annette Ruth Appell

annette appell

This essay reflects on how lawyering for children relates to the personhood of children and youth. More concretely, it critically explores the role of children’s lawyers in promoting the individual and systemic interests of their youthful constituents. At a time when children are increasingly viewed as rights-holders, provided with attorneys, and subject to coercive state intervention and restriction, questions regarding who speaks for children and how children’s voice informs discussions about childhood, dependency, family and community are particularly cogent. On behalf of individual, and classes of, children, lawyers are actively engaged in the creation, definition and promotion of rights regarding …