Law Commons^™

Recusal, Government Ethics, And Superannuated Constitutional Theory, Keith Swisher

Keith Swisher

Something good and something bad happened recently in government and judicial ethics; no one has truly noticed yet for some reason. The Supreme Court all but banned First Amendment analysis as applied to recusal laws, both legislative and judicial. That, actually, is the good thing, or so I argue. The bad thing is that the Court, in doing so, used a geriatric approach to constitutional theory. The approach is unduly reverent of anything “old;” and old is not limited to the practices of the Founding Fathers, but also includes “traditional” practices within some undefined range. But what is old is …

Planting People, Growing Justice: The Three Pillars Of New Social Justice Lawyering, Artika Renee Tyner

Artika Renee Tyner

This article explores the tools that lawyers can employ to build and sustain social change. These tools add a new dimension to scholarly research in the field by focusing on the role of lawyers as leaders as they seek to influence processes of social change, transform systems, and empower others to lead. This Article draws upon principles of social justice lawyering, which acknowledge that lawyers have a fiduciary duty to create equal justice under the law. It combines these frameworks with leadership theoretical perspectives since there is a dearth of research available on the role of lawyers as leaders in …

Direct And Enhanced Disclosure Of Researcher Financial Conflicts, Roy G. Spece Jr.

Roy G Spece Jr.

Abstract of DIRECT AND ENHANCED DISCLOSURE OF RESEARCHER FINANCIAL CONFLICTS OF INTEREST: THE ROLE OF TRUST In earlier writing I recommended direct disclosure of a major researcher financial conflict of interest, per capita funding—i.e., providing a fixed sum per subject recruited and enrolled in a study. This article adds a recommendation for enhanced direct disclosure. The enhancement in the disclosure is a summary of why per capita and excess payments are being discussed. The reason they are being discussed is because of their risk of introducing bias into researchers’ decisions regarding study design, implementation, and interpretation as well as concerning …

Religious Law Schools And Democratic Society, Jennifer Wright

Jennifer Wright

Many believe that, in a democratic society, the law must be approached as a purely secular, neutral system to which all members of society can assent. Discussion of religious foundations of law is condemned as inherently divisive and destructive of democratic process. Many in the legal academy believe that law school education should not involve teaching students to examine the moral foundations of the law and the legal system, and certainly should not invite and challenge law students to examine their professional role in the justice system in light of their own moral commitments and religious faiths. Law students both …

Torture Warrants, Necessity, And Self-Defense, Fritz Allhoff

Fritz Allhoff

This article explores a debate over the legal mechanisms by which interrogational torture could be sanctioned. Four separate proposals are considered, including: civil disobedience; torture warrants; self-defense; and necessity. Civil disobedience does not allow for legalized torture, but may allow for reduced punishments. Torture warrants contrast with self-defense and necessity in terms of offering ex ante, as opposed to ex post, authorization; arguments for and against either approach are considered. While there has been some legal scholarship in relation to torture warrants, less has been said about ex post justifications. This article ultimately defends the appropriateness of the necessity defense …

Empirical Objections To Torture: A Critical Reply, Fritz Allhoff

Fritz Allhoff

Those who support torture in ticking-time-bomb cases are often criticized as failing to consider empirical objections to torture; however, torture’s critics often wield this charge uncritically, doing little more than throwing out platitudes without considering the role of those platitudes in the dialectic. I agree with the critics that more empirical engagement is owed than is typically on offer, but deny that such engagement vindicates their position. This essay therefore considers various stock objections to the actual use of torture, while ultimately arguing that those objections fail to undermine the use of torture in exceptional cases. In particular, we will …

Why Civility Matters, Gregory T. Holtz

Gregory T. Holtz

No abstract provided.

Why Civility Matters, Gregory T. Holtz

Gregory T. Holtz

No abstract provided.

Lawyer Rules As Substantive Law, Benjamin P. Cooper

Benjamin P Cooper

Are the Rules of Professional Conduct “law?” In disciplinary proceedings, there is no question that they are, but their impact beyond the disciplinary realm remains a matter of controversy. As the Restatement of the Law Governing Lawyers aptly states: “The legal effect of officially adopted lawyer codes is fundamental and diverse.” Scholars have examined the non-disciplinary impact of the professional rules in a variety of areas, but this Article examines a largely unexplored question: the enforceability of certain agreements (e.g. lawyers splitting fees with non-lawyers) that are prohibited by the professional rules. If lawyers enter into these prohibited agreements, they …

Medical Marijuana Lawyers: Outlaws Or Crusaders?, Sam Kamin, Eli Wald

Sam Kamin

While marijuana remains a prohibited substance under federal law – one whose manufacture, possession, or distribution is a serious felony – 17 states plus the District of Columbia have legalized the drug for certain medical uses. This tension between state and federal law creates confusion for all of those who work in the emerging medical marijuana (“MMJ”) industry. As marijuana moves from the shadows to the storefronts, it becomes a business. Businesses have employees, shareholders and leases; they must comply with state and local zoning ordinances and pay their taxes. In most businesses, proprietors turn to lawyers for help with …

Putting Boomers To Pasture: Does The 2010 Mippa Legislation Reinforce The Nursing Home Bias?, Robert S. Bloink

Robert S Bloink

Unfunded health care expenses pose one of the greatest threats to the postretirement income security of seniors in America today. It is estimated that the average couple retiring in 2012 will require savings of approximately a quarter million dollars dedicated solely to their unfunded postretirement health care expenses, but this estimate does not factor in the expensive long-term care that most retirees will require toward the end of their lives. That the quarter-million dollar figure does not include the rapidly increasing cost of long-term care should alarm both retirees and those baby boomers approaching retirement age today. Controversial healthcare reform …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

Putting Boomers To Pasture: Does The 2010 Mippa Legislation Reinforce The Nursing Home Bias?, Robert S. Bloink

Robert S Bloink

Unfunded health care expenses pose one of the greatest threats to the postretirement income security of seniors in America today. It is estimated that the average couple retiring in 2012 will require savings of approximately a quarter million dollars dedicated solely to their unfunded postretirement health care expenses, but this estimate does not factor in the expensive long-term care that most retirees will require toward the end of their lives. That the quarter-million dollar figure does not include the rapidly increasing cost of long-term care should alarm both retirees and those baby boomers approaching retirement age today. Controversial healthcare reform …

Lessons From Positive Psychology For Developing Advocacy Skills, Nancy Schultz

Nancy Schultz

Advocacy skills are crucial to law students and lawyers. One of the ways law students develop those skills is in the context of lawyering skills competitions. This article explores whether there is any psychological research that might offer more systematic guidance for advocacy coaches and instructors. Positive psychology does offer some principles that suggest useful approaches to coaching and teaching advocacy. Taken together with instinct and experience, these principles can help coaches and advocacy instructors be more effective in training young lawyers for litigation and dispute resolution practice.

Why Civility Matters, Gregory T. Holtz

Gregory T. Holtz

An essay on professionalism "Why Civility Matters" considers why civility is a key and fundamental component of sound and effective lawyering. The essay suggests and creates a civility framework as a means and strategy of incorporating civility into one's daily practice.

Am I My Brother’S Keeper? A Tax Law Perspective On The Challenge Of Balancing Gatekeeping Obligations And Zealous Advocacy In The Legal Profession, Richard L. Lavoie

Richard L. Lavoie

In recent years the question of whether lawyers have a general ethical obligation to serve a gatekeeping function has been raised in a number of legal contexts. The reaction of the practicing bar generally has been unenthusiastic. While asserting that a gatekeeping function should be generally applicable to all attorneys is a relatively recent stance, such an obligation historically has been acknowledged to various degrees in several specific practice areas, including particularly in the field of federal income taxation. This piece examines the gatekeeping question, and how the practicing bar should react to it, through an examination of the gatekeeping …

Teaching Ethics In Criminal Justice To First Year Law Students: Or Efforts To Dislodge The Csi Effect, Susan Rutberg

Susan Rutberg

Teaching Ethics in Criminal Justice to First Year Law Students:

Or Efforts to Dislodge the CSI Effect[1]

Susan Rutberg[2]

ABSTRACT

This article discusses the implementation of an innovative first year course at Golden Gate University School of Law entitled “Lawyering Skills: Ethics in Criminal Justice.” The course, offered for the first time in the spring of 2011, was the product of curricular reform set in motion by the 2007 Carnegie Foundation Report, Educating Lawyers: Preparation for the Profession of Law. Golden Gate University has had a longtime focus both on practical legal education and ethical training. We devote a substantial …

Deceiving Law Students: Employment Statistics & Tort Liability, Angie D. Roberts-Huckaby

Angie D. Roberts-Huckaby

Controversy is rampant in American legal education. In less than a year, an unprecedented fourteen separate class action lawsuits have been filed against fourteen different law schools. The lawsuits each allege that the schools have disseminated postgraduate employment statistics in ways that are fraudulent and misleading. Students’ primary goal, when applying to law school, is to become lawyers. Law school is not an institution students attend merely to satisfy intellectual curiosity. Law school is a grueling three-year endurance race challenging student’s intellectual reasoning, emotional rationale, and financial security. Therefore, it is critical for students to choose the right school7 Law …

Like A Glass Slipper On Step-Sister, How The One-Ring Rules Them All At Trial, Cathren Page

Cathren Page

The literary concept of an endowed object can weave a thread of narrative continuity throughout a trial and resonates in the mind of the judge or juror. In literature, an endowed object is a material object that reverberates with symbolic significance throughout the story. The object can develop the theme, character, and emotions. Examples include Cinderella’s glass slipper, the one-ring, the handkerchief in Othello, and the mocking jay pin from The Hunger Games. Endowed objects have been persuasive symbols in famous trials as well. Endowed objects include the glove in the O.J. Simpson murder trial and John Wilkes Booth’s boot …

Alternative Litigation Finance And The Work Product Doctrine, Grace M. Giesel

Grace M. Giesel

Personal Reflections On Connick V. Thompson, Michael Vitiello

Michael Vitiello

This essay describes my minor role in Connick v. Thompson. After offering that background, I use the case as a vehicle to discuss why I oppose the death penalty.

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

The American legal system generates losers every day. Our adversarial system of litigation practically guarantees that every lawsuit will produce a winner and a loser. When the legislature or the people directly through initiatives enact legislation that further restricts land use, landowners hoping for greater land development options are transformed into losers as well.

Losers can choose to voice their grievances, to exit the system, or to resort to illegal behavior. But once voice is exercised, and exit and illegality are rejected as viable choices, we want losers to select "acceptance" of their losses, because this helps to maintain the …

The Immorality Of Denial, Jonathan R. Cohen

Jonathan R. Cohen

This article is the first of a two-part series critically examining the role of lawyers in assisting clients in denying responsibility for harms they have caused. If a person injures another, the moral response is for the injurer actively to take responsibility for what he has done. In contrast, the common practice within our legal culture is for injurers to deny responsibility for harms they commit. The immoral, in other words, has become the legally normal. In this Article, Professor Cohen analyzes the moral foundations of responsibility-taking. He also explores the moral, psychological, and spiritual risks to injurers who knowingly …

Advising Presidents: Robert H. Jackson And The Problem Of Dirty Hands, William Casto

William Casto

ABSTRACT Not so long ago, legal advice given to President George W. Bush regarding torture sparked considerable controversy, and discussions were frequently distorted by rancorous partisanship. The present essay uses advice given to President Franklin Roosevelt by Attorney General, later Justice, Robert Jackson as a laboratory for exploring the ethical dimensions of the advisory relationship. In particular, this essay examines the president’s unilateral decision in 1940 to transfer fifty destroyers to the British. That Destroyer Deal is distant in time and is now relatively uncontroversial. Today, everyone agrees with the substantive policy of helping Great Britain against Nazi Germany. The …

The Department Of Health And Human Services Vs. Attorneys: Will The Federal Courts Tame An Agency Run Amuck, Anne M. Rife

Anne M Rife

The Department of Health and Human Services vs. Attorneys – Can and Will the Federal Courts Tame an Agency Run Amuck? ABSTRACT Medicare has been a system destined for financial trouble arguably since its creation in 1965. For years, Congress and the Department of Health and Human Services (“DHHS”) have passed legislation, regulations, and implemented procedures to try to save it. But, when DHHS decided to protect Medicare by suing attorneys, it took its role too far and placed attorneys in an ethical and procedural maelstrom. In Haro v. Sebelius, the United States District Court of Arizona recently addressed DHHS’s …

Atticus Finch Looks At Fifty, Michael L. Boyer

Michael L. Boyer

At the 50th anniversary of To Kill A Mockingbird (the book and film), this piece explores the textual evidence related to Atticus Finch as a public interest lawyer as concerned with class and economic equality as racial justice. This interpretive strand has received less attention yet remains one of the most useful for post financial collapse legal professionals.

The Fiduciary Duties Of Directors And Officers In Insolvent Corporations: A Uniform International Standard?, William H. Hudson

William H Hudson

This Article explores the complicated field of fiduciary duties governing corporate directors and officers in companies facing or dealing with insolvency. It provides both a macro and micro level investigation into the vast differences in corporate fiduciary duties across jurisdictions. This Article provides the results of a broad and unique survey conducted across the globe to gain an accurate perspective regarding the inconsistencies facing corporate directors and officers dealing with new or emerging fiduciary duties. The findings of this survey will be presented to the International Insolvency Institute at its annual meeting in Paris, France on June 21, 2012. This …

Judicial Externship Evalution Online Version, Taras Zenyuk

Taras Zenyuk

You who are on the road must have a code that you can live by and so become yourself because the past is just a good bye. Teach your children well their father's hell did slowly go by and feed them on your dreams the one they picked the one you'll know by...

Rethinking Regulation And Innovation In The U.S. Legal Services Market, Ray W. Campbell

Ray W Campbell

For decades, academics have argued that the US system for regulating the practice of law inhibits innovation. Despite that academic consensus, we live in an age of unparalleled innovation in the way legal services are provided to clients in the United States. What gives? How can we live in a regulatory environment that prevents innovation, and have such an abundance of it? Where is this innovation coming from, and from whence might more innovation come? The answers are neither simple nor obvious. Understanding this changing landscape requires a close look both at how innovations take root and at the US …

Law Firm Ethics In The Shadow Of Corporate Social Responsibility, Christopher J. Whelan

Christopher J Whelan

Corporate clients, and in particular global corporations, are gaining influence and control of law firm practices in ways that would have been unthinkable in the past. Through various mechanisms, such as ‘Outside Counsel Guidelines,’ ‘Codes of Practice’ and the like, corporate clients set standards which lawyers are expected to follow. We have examined over 20 sets of Guidelines and conducted over 20 interviews with outside, in-house and general counsel.

The topics incorporated in the guidelines vary to a great extent. However, while some clearly protect the direct and immediate interests of the client – provisions relating to billing and conflicts …