Law Commons^™

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

William P. Alford: Kindness, Integrity, And Insight, Benjamin L. Liebman

Faculty Scholarship

In the summer of 1988, travelling from Dengshikou, in the center of Beijing, to the Xiyuan Hotel, just across from the Beijing Zoo, seemed like travelling to the outer edge of Beijing. I was back in Beijing visiting my host family at the end of the summer, and they were worried about me travelling so far on my own. But I had an invitation to dinner with an American professor, and my host family reluctantly let me travel across Beijing on the electric trolley bus to attend the dinner.

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen

Faculty Scholarship

This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.

Where Is The "Quality Movement" In Law Practice?, William H. Simon

Faculty Scholarship

The "Quality Movement" that originated in industrial production and has since influenced the professions prescribes standardized work, root cause analysis of errors, peer review, and performance measurement. While these reforms have transformed medicine and some other professions, their influence has lagged in the legal profession. This Essay reviews the limited progress of the reforms in law and assesses the cultural, institutional, and doctrinal obstacles they face.

The Challenges Of Developing Cross-Cultural Legal Ethics Education, Professional Development, And Guidance For The Legal Professions, Philip Genty

Faculty Scholarship

The broad goal of this paper is to describe the need, and provide a framework, for engaging in cross-cultural conversations among lawyers, law teachers, and others, who are using legal ethics as a vehicle for improving the legal professions and the delivery of legal services. All legal cultures struggle with the question of how to educate students and lawyers to be ethical professionals and how to regulate the legal profession effectively. The purpose of the cross-cultural conversations discussed in this paper would be to develop principles of legal ethics education, professional development, and regulation of the legal professions that can …

Role Differentiation And Lawyer's Ethics: A Critique Of Some Academic Perspectives, William H. Simon

Faculty Scholarship

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The essay uses as a central reference point the "Mistake-of-Law" scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer's error I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an older …

Where Will Women Lawyers Be In 25 Years?, Frances E. Bivens, Joan Guggenheimer, Nancy Northrup, Susan Sturm, Judith Reinhardt Thoyer

Faculty Scholarship

Barbara Black said in her unbelievably moving remarks that Columbia has opened up its institutional heart to women. I thought that was a wonderful expression and, as a relative newcomer to Columbia, I have to agree. What does this mean? It means that women have become part of the cultural fabric of the Columbia Law School. We are not an accent. We are not an accessory. We are woven into the day-to-day fabric of the school. And this means being able both to participate in the old traditions and to reshape them to make some new traditions and then have …

Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip Genty

Faculty Scholarship

After almost 12 years in law teaching, I approached my first sabbatical with a single goal: to free myself from cases. At that time my clinic clients were primarily parents who were involved in family court proceedings in which they were trying to preserve their parental rights and get their children out of the foster care system. Such cases are emotionally draining for both the client and the lawyer. Thus, while I welcomed the chance to have a semester off from teaching and attending faculty and committee meetings, I felt that I needed a break from the demands of lawyering …

From Gladiators To Problem-Solvers: Connective Conversations About Women, The Academy, And The Legal Profession, Susan P. Sturm

Faculty Scholarship

Dissatisfaction permeates the public and professional discourse about lawyers and legal education. Diverse communities within and outside the profession are engaged in multiple conversations critiquing legal education and the profession itself. These conversations, though linked in subject matter and orientation, often proceed on separate tracks.

One set of conversations explicitly focuses on women and people of color, centering on their marginalization and underrepresentation in positions of power. Those concerned about race and gender exclusion often participate in separate communities of discourse. Indeed, the symposium that spawned this article framed the inquiry about higher education in terms of gender. This exclusive …

Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that …

Justice Brennan, Peter L. Strauss

Faculty Scholarship

The editors of the St. John's Law Review have given me the boon of a few pages in which to celebrate Justice Brennan with you. The problem for a former law clerk, for anyone who has known this man, is to know where to begin, and how to keep the appreciation within manageable compass.

The Devolution Of The Legal Profession: A Demand Side Perspective, Ronald J. Gilson

Faculty Scholarship

Economic analysis has not played a significant role in the increasingly intense debate over the decline of professionalism among lawyers.Economists' lack of interest in the issue may be understandable. The lawyers' lament is that the legal profession is devolving into the business of law. That this concern has not captured the economists' attention may reflect only that economists do not view the label "business" as a pejorative. If becoming a business means efficiently rendering an important service in a competitive environment, then of what is there to complain?

Lawyers, more directly concerned with maintaining their professional status, would find little …

The Metamorphosis Of Legal Education Symposium On Legal Education, Peter L. Strauss

Faculty Scholarship

Professor Brook's remarks this morning provide a context for my own. I mean to say a word or two for the classical era. One of the characteristics of legal education over the past half century or so, one that we ought not give up, has been its passion for order in a chaotic world. Striking as it is to say that "a passion for order ill suits a chaotic world," the world has ever been chaotic – and that passion, our principal defense. The question is, with what principles of order do we exercise that passion, to subdue unruly fact. …

Rescuing The Private Attorney General: Why The Model Of The Lawyer As Bounty Hunter Is Not Working, John C. Coffee Jr.

Faculty Scholarship

Forty years ago, Judge Jerome Frank coined the term "private Attorney General" to recognize the role of private litigation in the enforcement of law. In the intervening years, the "private attorney general" concept has become both a cliche and a crutch, receiving polite lip service from nearly all, but critical analysis from relatively few. As most college sophomores know, the private attorney general is someone who sues "to vindicate the public interest" by representing collectively those who individually could not afford the costs of litigation; and, as every law student knows, our society places extensive reliance upon such private attorneys …

2-1-1: The 4th Revolution In Legal Education, Michael I. Sovern

Faculty Scholarship

If we were to count the great changes in legal education from Charles Evans Hughes' day to this, we would find ourselves with a short list. The shift from apprenticeship to school was already well begun by the time Mr. Hughes was graduated from the Columbia School of Law in 1884. The case method was a new idea, but it would become the orthodox methodology in a startlingly short time. By the turn of the century, a number of law schools had moved from two- to three-year programs, but two years was still enough for admission to the bar in …