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Articles 1 - 30 of 83
Full-Text Articles in Law
Cultivating Sense: Cultural Change In The Prosecutor’S Office, Shih-Chun Steven Chien
Cultivating Sense: Cultural Change In The Prosecutor’S Office, Shih-Chun Steven Chien
Law Faculty Articles and Essays
Prosecutors exercise broad discretion. They are widely viewed as the gatekeepers of the criminal justice system. To date, studies on prosecutors in different jurisdictions have largely focused on how to conceptualize, manage, and eventually control the exercise of prosecutorial discretion. Scholars have recently turned their attention to the importance of internal organizational management and leadership’s role in changing office culture as a means to regulate prosecutorial discretion. But we have limited empirical evidence as to how changes occur within a prosecutor’s office and what precise role organizational leaders play during this process.
This Article constructs a new paradigm for the …
The Rise Of Environmental, Social And Corporate Governance Disclosures In The United States And Mandatory Human Rights Due Diligence In Europe: Implications For U.S. Lawyers, Marie-Claude Jean-Baptiste
The Rise Of Environmental, Social And Corporate Governance Disclosures In The United States And Mandatory Human Rights Due Diligence In Europe: Implications For U.S. Lawyers, Marie-Claude Jean-Baptiste
Global Business Law Review
Over the past decade, due in part to the devastating impact of the global financial crisis of 2008 and growing awareness of climate change, the world witnessed increasing interest on the part of society in general, and investors in particular, for responsible business. “Responsible business” is the concept that business should be conducted in a way that 1) does not violate fundamental rights of the people affected by the business activity; 2) does not exacerbate environmental harm; and 3) complies with basic principles of good governance. Society’s interest in responsible business has been reflected in growing pressure on businesses to …
A Stitch In Time Saves Nine: How The State Of Ohio Can Save Money And Distress Through Legal Training For Pre-Service Teachers, Karin Mika, Christine Mika
A Stitch In Time Saves Nine: How The State Of Ohio Can Save Money And Distress Through Legal Training For Pre-Service Teachers, Karin Mika, Christine Mika
Law Faculty Articles and Essays
For simplicity, this Note will focus on the educational requirements for high school teachers rather than elementary or middle school teachers. Here, the requirements include core content instruction, literacy instruction, and a 12-week student teaching experience. Additionally, ODHE issues a vague requirement of preparation in six different Ohio school-related standards. Only one of those standards, the Ohio Standards for the Teaching Profession, even mentions correctly applying the law.
There is clearly a need for some form of legal preparation for teachers in Ohio that must take place before an individual becomes a teacher. Not only is there an ethical obligation …
Actively Achieving Greater Racial Equity In Law School Classrooms, Catherine Bramble, Rory Bahadur
Actively Achieving Greater Racial Equity In Law School Classrooms, Catherine Bramble, Rory Bahadur
Cleveland State Law Review
2020 illustrated the ongoing pervasiveness of implicit and explicit racism in our society. Less well-acknowledged and recognized is the extent to which Socratic pedagogy also reflects those pervasive racist realities while simultaneously resulting in inferior learning based on a teaching method invented 150+ years ago. Despite this racist and outdated reality, the legal academy has been reluctant to alter the traditional method of teaching. Tangible, empirical evidence obtained from data-driven cognitive learning science research demonstrates that active learning not only improves learning outcomes for all students, but also mitigates the structural effects of racism in the classroom thereby increasing racial …
Frivolous Defenses, Thomas D. Russell
Frivolous Defenses, Thomas D. Russell
Cleveland State Law Review
This Article is about civil procedure, torts, insurance, litigation, and professional ethics. The Article is the opening article in a conversation with Stanford Law Professor Nora Freeman Engstrom, who has written about the plaintiffs’ bar and settlement mill attorneys. The empirical center of this piece examines 356 answers to 298 car crash personal injury cases in Colorado’s district courts. The Article situates these cases within dispute pyramid elements, including the total number of miles-traveled within Colorado and the volume of civil litigation. The Article then analyzes the defense attorneys’ departures from the Colorado Rules of Civil Procedure, especially Rule 8. …
Change At The Speed Of Leadership, Lee Fisher
Change At The Speed Of Leadership, Lee Fisher
Law Faculty Articles and Essays
“The most dangerous leadership myth is that leaders are born—that there is a genetic factor to leadership. . . That’s nonsense; in fact, the opposite is true. Leaders are made rather than born.”
“Lawyers are in the anomalous position of serving as leaders but generally lacking leadership training and skills. Competency in lawyering skills often functions as a proxy for leadership skills, despite the evidence that leadership skills are distinct and may take years to develop. Our neglect of leadership skills is reaching crisis proportions because nearly half of all current law firm partners will retire within the next ten …
Is Law A Discipline? Forays Into Academic Culture, Gene R. Shreve
Is Law A Discipline? Forays Into Academic Culture, Gene R. Shreve
Cleveland State Law Review
This Article explores academic culture. It addresses the reluctance in academic circles to accord law the full stature of a discipline. It forms doubts that have been raised into a series of four criticisms. Each attacks an academic feature of law, inviting the question: Is law different from the rest of the university in a way damaging its stature as an academic discipline? The Article concludes that, upon careful examination of each criticism, none establishes a difference between law and other disciplines capable of damaging law’s stature.
Professional Identity Formation Through Pro Bono Revealed Through Conversation Analysis, Linda F. Smith
Professional Identity Formation Through Pro Bono Revealed Through Conversation Analysis, Linda F. Smith
Cleveland State Law Review
Law school is supposed to teach legal analysis and lawyering skills as well as mold law students’ professional identities. Pro bono work provides an opportunity for law students to use their legal knowledge and skills and to develop their identities as emerging legal professionals. As important as both pro bono work and identity formation are, there has been very little research regarding how pro bono contributes to students’ identity formation. This Article utilizes a data set of over forty student-client consultations at a pro bono brief advice project that have been recorded and transcribed. It uses conversation analysis to study …
Chief Justice William Howard Taft's Conception Of Judicial Integrity: The Legal History Of Tumey V. Ohio, Joshua Kastenberg
Chief Justice William Howard Taft's Conception Of Judicial Integrity: The Legal History Of Tumey V. Ohio, Joshua Kastenberg
Cleveland State Law Review
In 1927, Chief Justice William Howard Taft led a unanimous Court to determine that, at minimum, the right to an impartial and independent judiciary meant that the judge had to lack a personal interest in the outcome of the trial. While the decision, Tumey v. Ohio, was based on a judge’s pecuniary interest, it was also part of Taft’s efforts to ensure that the nation’s judges, from the municipal courts to the Supreme Court had the public’s confidence in their integrity. Tumey, therefore, is not simply a decision on pecuniary interests. It can, and should, be applied to …
Using Grit And Growth Mindset To Foster Resilience And Professionalism In Law Students And Attorneys, Carolyn Broering-Jacobs
Using Grit And Growth Mindset To Foster Resilience And Professionalism In Law Students And Attorneys, Carolyn Broering-Jacobs
Law Faculty Presentations and Testimony
The presentation introduced current research showing correlation between grit, growth mindset, and success in varied disciplines, then suggested several means for improving grit. Attendees discussed several problems that a young lawyer might experience and considered how grit and growth mindset might affect the lawyer's response to the problem.
Private Requitals, Bailey Kuklin
Private Requitals, Bailey Kuklin
Cleveland State Law Review
Previously, I examined the establishment of a person’s substantive rights and, correlatively, duties. But this was only the first step. This Article addresses the second step: the means for recognizing requital rights violations, including their articulation, adoption, and implementation. Taking a deontic, individualistic perspective on rights, this Article aims to delineate and protect one’s personal freedom, one’s autonomy. To do so, this Article, using a formal understanding of the categorical imperative, will examine whether an agent’s chosen maxims are deontically acceptable. The maxims need to be both first-order, substantive ones that establish autonomy boundary baselines, and second-order, requital ones that …
The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer
The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer
David Barnhizer
In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and …
The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer
The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer
David Barnhizer
In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and …
The American Law School And Nine Elements Of “Thinking Like A Lawyer”, David Barnhizer
The American Law School And Nine Elements Of “Thinking Like A Lawyer”, David Barnhizer
David Barnhizer
The idea of “thinking like a lawyer” represents a form that combines strategic analysis, assessment and action. At this point my analysis takes an unusual step and seeks to enhance our understanding through use of a seemingly “exotic” framework. In A Book of Five Rings, Miyamoto Musashi describes nine points a strategist must master. I have long thought these points represent the true meaning and composition of what it means when we say “thinking like a lawyer” and am offering them here as a focusing device. Musashi’s nine elements are: 1). Do not think dishonestly; 2). Become acquainted with every …
Self-Interest And Sinecure: Why Law School Can’T Be “Fixed” From Within, David Barnhizer
Self-Interest And Sinecure: Why Law School Can’T Be “Fixed” From Within, David Barnhizer
David Barnhizer
The issue of how best to do a legal education is being approached as if it were an intellectual and pedagogical question. Of course in a conceptual sense it is. But from a political and human perspective (law faculty, deans and lawyers) it is a self-interested situation in terms of how does this affect me? The reality is that for law faculty and deans it is mainly a life style, status, economic benefit and political situation in which the various interests protected by the traditional faculty slot placeholders [as well as the non-traditional practice-oriented teachers) are being masked by self-serving …
"Practice Ready" Law Graduates, David Barnhizer
"Practice Ready" Law Graduates, David Barnhizer
David Barnhizer
Whatever view one holds on the idea of “practice ready” law graduates in the abstract it seems clear that it does not and could not mean that a new graduate can be fully capable of providing high quality services across the board to clients unfortunate enough to be using the services of the neophyte lawyer. If that were the case I can hear a client’s conversation with the brand new lawyer in a complex corporate merger with numerous parties, millions of dollars at stake, estate and tax issues, patent rights and differing valuations for the deal. “How many of these …
Legal Malpractice In A Changing Profession: The Role Of Contract Principles, Vincent R. Johnson
Legal Malpractice In A Changing Profession: The Role Of Contract Principles, Vincent R. Johnson
Cleveland State Law Review
In little more than four decades, the field of American legal ethics has been transformed from an unimportant backwater into a mighty river of legal principles that drives the practice of law in countless respects. Today, this complex matrix of substantive provisions and enforcement mechanisms ensures, to a great extent, that clients are protected from unnecessary harm, that lawyers are safeguarded from improper accusations, and that the provision of legal services is consistent with the public interest. However, the fabric of legal ethics is threatened by a looming transformation of the legal profession. That potential restructuring may revolutionize the delivery …
Abandoning An "Unethical" System Of Legal Ethics, David R. Barnhizer
Abandoning An "Unethical" System Of Legal Ethics, David R. Barnhizer
Law Faculty Articles and Essays
It is time to abandon the pretense of "legal ethics" as an independent lawyer-run system and to design a civil liability system in which lawyers can be held accountable to wronged clients at reasonable costs with ready access and fair modes of proof. To the extent that the system of ethics actually caused lawyers to act "ethically" (which is a major and largely unsupportable supposition), the competitive dynamics of the legal profession, coupled with the significant decline in values, honesty, and accountability in American society, have rendered even that historically suspect system illegitimate. This does not mean that there are …
Simulations In Clinics, Contract Drafting, And Upper-Level Courses, Carole O. Heyward, David M. Epstein, Helen S. Scott, Daniel B. Bogart
Simulations In Clinics, Contract Drafting, And Upper-Level Courses, Carole O. Heyward, David M. Epstein, Helen S. Scott, Daniel B. Bogart
Law Faculty Articles and Essays
I teach in a transactional clinic called the Urban Development Law Clinic. In my Clinic, we represent non-profit tax-exempt organizations that engage in real estate, economic, and community development. Some of our clients include Greater Cleveland Habitat for Humanity and Karamu House, which is a theater and community arts center. We serve as general counsel for some clients and provide legal advice on an as needed basis for others. The Clinic provides legal advice on real estate matters, corporate governance, transactions, and tax issues. The complexity of matters that we handle ranges from drafting a code of regulations to representing …
Neither Reasonable Nor Remedial: The Hopeless Contradictions Of The Legal Ethics Measures To Prevent Perjury , Susan E. Thrower
Neither Reasonable Nor Remedial: The Hopeless Contradictions Of The Legal Ethics Measures To Prevent Perjury , Susan E. Thrower
Cleveland State Law Review
Analyzing the inherent conflict posed by the use of an undefined mandate-“reasonable remedial measures”-leads to analysis of the even deeper, unresolvable conflicts in the primary steps prescribed by commentary: the client's narration of his own story, the lawyer's withdrawal from representation, and the lawyer's disclosure of the client's false evidence. Not all of the reasonable remedial measures protect both the client's confidentiality and the court's insistence on honesty, and none of them protects the lawyer from charges of impropriety. In the face of the utter failure of the Model Rules to accomplish their conflicting goals, the ABA's rules drafters should …
Reframing The Independence V. Accountability Debate: Defining Judicial Structure In Light Of Judges' Courage And Integrity, David Pimentel
Reframing The Independence V. Accountability Debate: Defining Judicial Structure In Light Of Judges' Courage And Integrity, David Pimentel
Cleveland State Law Review
The perennial debate over striking the right balance between judicial independence and judicial accountability largely misses the mark. The tension between these concepts arises only in the structural sense of the terms, i.e. the conflict lies in the structural approaches traditionally taken to protect independence and to enforce accountability. In actuality, our primary concern should be the judge's own sense of independence and her internal sense of accountability. These more subjective concepts--which may be termed “judicial courage” (for the judge who is willing to act independently) and “judicial integrity” (for the judge who is willing to hold herself accountable)--do not …
The Duty To Report Violations Of The Rules Of Professional Conduct: Alternative Views, Lloyd B. Snyder, Harry D. Cornett Jr.
The Duty To Report Violations Of The Rules Of Professional Conduct: Alternative Views, Lloyd B. Snyder, Harry D. Cornett Jr.
Law Faculty Articles and Essays
Thomas Horwitz wrote a thoughtful, provocative article in the November edition of this Journal critizicing Ohio Advisory Opinion 2007-1. That opinion offers the view of the Board of Commissioners on Grievances and Discipline on several features of Rule 8.3 of the Ohio Rules of Professional Conduct. Rule 8.3 requires lawyers to report certain violations of the Rules. Failure to report is itself a violation of the Rules. Horwitz not only criticized the advisory opinion, he also disapproved the procedures followed by the Board in formulating its advisory opinion. The authors of this article disagree with Howitz and offer their views …
Seeking A Seat At The Table: Has Law Left Environmental Ethics Behind, As It Embraces Bioethics?,, Heidi Gorovitz Robertson
Seeking A Seat At The Table: Has Law Left Environmental Ethics Behind, As It Embraces Bioethics?,, Heidi Gorovitz Robertson
Law Faculty Articles and Essays
Bioethics evolved from theoretical philosophy into an applied field. Decision makers in health and medical sciences involve bioethicists in decisions and policy making. Although people study environmental ethics, mainly in philosophy programs, environmental ethicists are not involved in decision making. I explore the development of bioethics and environmental ethics, primarily considering the role of law in their development. I ask whether laws and legal opinions encouraging the use of bioethicists in decision making promoted the development of applied bioethics, and correspondingly, whether the absence of laws and opinions promoting environmental ethicists retarded the development of applied environmental ethics. Finally, I …
Lawyer Deception To Uncover Wrongdoing, Lloyd B. Snyder
Lawyer Deception To Uncover Wrongdoing, Lloyd B. Snyder
Law Faculty Articles and Essays
A Colorado district attorney used deception to get a man who had murdered three people and was threatening to kill again to surrender himself to the police. Following this, the Colorado Attorney Regulation Counsel charged the attorney with violating Rules 8.4(c) and 4.3 of the Colorado Rules of Professional Conduct. This article discusses the Rule 8.4(c) charge. Colorado and Ohio have identical provisions in their Codes of Professional Conduct on dishonesty and violations of professional conduct rules.
"On The Make": Campaign Funding And The Corrupting Of The American Judiciary, David R. Barnhizer
"On The Make": Campaign Funding And The Corrupting Of The American Judiciary, David R. Barnhizer
Law Faculty Articles and Essays
The thesis offered here is that the cost of judicial campaigns has reached a level where both candidates and sitting judges are shaping their behavior to attract financial and other support. This not only results in distortion of judicial selection by repelling meritorious potential candidates who are unwilling to compromise their principles, but in the capture of judges by special interests willing to finance judicial campaigns. Some argue that the great increase in contributions to judicial candidates simply means that contributors are giving to candidates they feel certain will support their positions. To some extent this is certainly true. But …
Bringing Ohio's Legal Ethics Into The 21st Century, Lloyd B. Snyder
Bringing Ohio's Legal Ethics Into The 21st Century, Lloyd B. Snyder
Law Faculty Articles and Essays
The time has come for Ohio to replace the Code of Professional Responsibility with a set of standards based on the Model Rules of Professional Conduct. The author offers seven reasons for doing so.
Princes Of Darkness And Angels Of Light: The Soul Of The American Lawyer, David R. Barnhizer
Princes Of Darkness And Angels Of Light: The Soul Of The American Lawyer, David R. Barnhizer
Law Faculty Articles and Essays
The increasing belief among many lawyers that life is comprised of "fear and greed and money" has altered the legal profession and helped make lawyers into one of the most feared and powerful groups in American society - and one of the most scorned. In the midst of the widespread contempt American society is showing lawyers, this article seeks to explain the special role the legal profession serves in our complex democracy. At the same time it condemns attitudes such as those reflected in Fritts' statement. The belief that life is driven by fear, greed, and money has created a …
Ethics, Loyalty And Harm To Third Parties: A Debate Based On Spaulding V. Zimmerman, Lloyd B. Snyder, Scott Rawlings
Ethics, Loyalty And Harm To Third Parties: A Debate Based On Spaulding V. Zimmerman, Lloyd B. Snyder, Scott Rawlings
Law Faculty Articles and Essays
This discussion poses the question: should an attorney ever provide information to an opposing party to prevent that party from suffering great harm if the information will have an adverse effect on the attorney's own client? The case that sets the stage for this discussion is Spaulding v. Zimmerman, 243 Minn. 346 (1962).
Of Cell Phones And Electronic Mail: Disclosure Of Confidential Information Under Disciplinary Rule 4-101 And Model Rule 1.6, Karin M. Mika
Of Cell Phones And Electronic Mail: Disclosure Of Confidential Information Under Disciplinary Rule 4-101 And Model Rule 1.6, Karin M. Mika
Law Faculty Articles and Essays
Regardless of the known security risks, it is difficult, if not impossible, to imagine a law firm in the twentieth century operating without the technological advancements that make it possible to communicate with anyone, anywhere, at any time. These advancements often enable immediate responses that are beneficial to attorneys and clients alike. Cellular phone usage and electronic mail are an integral mode of communication between firm members, negotiating attorneys, as well as between attorneys and their clients. While it has developed into a mode of communication making the practice of law more efficient, it is doubtful that most attorneys give …
Reap What You Sow, Gordon J. Beggs
Reap What You Sow, Gordon J. Beggs
Law Faculty Articles and Essays
Unfortunately, with the adoption and revision of formal ethics codes, moral teaching has virtually disappeared from American legal ethics. Law professors, generally, do not consider it their responsibility to teach morality, and our profession today lacks a common moral standard. The Judeo-Christian principles expressed in Proverbs, however, provide a timely challenge to lawyers by advocating values that include justice, purity, mercy, honesty and civility.