Law Commons^™

Avoiding Judicial Discipline, Veronica Root Martinez

Journal Articles

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into judicial …

Policing The Prosecutor: Race, The Fourth Amendment, And The Prosecution Of Criminal Cases, Renee Mcdonald Hutchins

Journal Articles

As this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment’s lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression …

The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell

Journal Articles

Paragraph 20 in the Scope section of the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules)-which most states have adopted-provides that a violation of the Model Rules "should not give rise to a cause of action against a lawyer[,] nor should it create any presumption in such a case that a legal duty has been breached." At the same time, Paragraph 20 provides that the Model Rules can be used as "evidence" of breach of a lawyer's standard of conduct. Thus, the Model Rules attempt to make it clear that ethical violations are distinct from substantive law …

Avoiding Unintended Disclosure: Representing Clients With Hiv And Aids, Lashanda Taylor Adams

Journal Articles

When the HIV/AIDS epidemic was initially recognized in the United States, many attorneys wondered what it would mean to represent a client with HIV. As the number of HIV-infected individuals grew, so did the need for attorneys to represent them. Specifically, attorneys questioned whether or not their duty of confidentiality would expose them to civil liability from failing to protect a third party.1 In response to this concern, several law review articles were written discussing the dilemma faced by attorneys bound by professional rules of conduct.2 These articles focused on the needs of the attorney and the public rather than …

Suspension And Delegation, Amy Coney Barrett

Journal Articles

A suspension of the writ of habeas corpus empowers the President to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: the writ may be suspended only in cases of "rebellion or invasion" and when "the public Safety may require it. " Congress alone can suspend the writ; the Executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive …

The Priority Of Persons Revisited, John Finnis

Journal Articles

This essay, in the context of a conference on justice, reviews and reaffirms the main theses of “The Priority of Persons” (2000), and supplements them with the benefit of hindsight in six theses. The wrongness of Roe v. Wade goes wider than was indicated. The secularist scientistic or naturalist dimension of the reigning contemporary ideology is inconsistent with the spiritual reality manifested in every word or gesture of its proponents. The temporal continuity of the existence of human persons and their communities is highly significant for the common good, which is the point and measure of social justice, properly understood. …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Journal Articles

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

Legal Ethics In A Time Of Change: An Assessment Of The American Bar Association's Ethics 20/20 Commission, Donald E. Campbell

Journal Articles

Bob Dylan sang "Times They are a-Changin'." A line from that song is "you better start swimmin' or you'll sink like a stone." This could easily be the theme of the 2013 Law Review Symposium. The Symposium was about change. Change that has come, is coming, and will (or should) come to the world of legal ethics and professional responsibility-as well as the consequences of refusing to recognize and adapt to change. The Symposium was prompted by work of the American Bar Association's Ethics 20/ 20 Commission, established in 2009 by then President Carolyn B. Lamm. The Commission was tasked …

Specious Claims And Global Settlements, S. Todd Brown

Journal Articles

Few problems are more disruptive to the efficient negotiation and operation of comprehensive mass tort settlements than oversubscription, which, at times, appears to be fueled primarily by specious claims. In settlements with opt out rights, a flood of claims can generate a market for lemons, with the weakest claims submitted to the settlement and the strongest opting out and seeking recovery at trial or in private settlement. In binding settlements, they may result in a commons problem, requiring dramatic reductions in payment that effectively transfer recoveries from those with intrinsically strong claims to those with weak claims.

This Article evaluates …

When Things Go Wrong In The Clinic: How To Prevent And Respond To Serious Student Misconduct, Robert Jones, Gerard F. Glynn, John J. Francis

Journal Articles

This article documents the types of misconduct that students commit, explores why serious misconduct occurs, examines whether such conduct can be anticipated and reduced by prescreening and monitoring potentially problematic students, and suggests how misconduct might be addressed once it occurs. The authors' analysis thus encompasses both legal obligations and pedagogical considerations, and it takes account of the differing perspectives of clinical professors, law school administrators, and bar examiners. The authors operate from a "student centered" perspective that emphasizes the support and development of law students. This article is prescriptive, therefore, in the extent to which it emphasizes preventive actions …

Adhering To Law And Values Against Terrorism, Mary Ellen O'Connell

Journal Articles

The thesis of this article was inspired by the remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, at Harvard Law School on September 16, 2011. Brennan said: “I've developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It's an appreciation, of course, understood by President Obama.... That is what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.”

Brennan's position is backed up by considerable data …

Raise Your Hand And Swear To Be Civil: Defining Civility As An Obligation Of Professional Responsibility, Donald E. Campbell

Journal Articles

The need to reclaim "civility" in the practice of law has become a rallying cry in the profession. Lack of civility has been blamed on everything from an increase in the cost of litigation to the cause of the public's lost faith in the legal profession. Further, courts are increasingly willing to sanction a lawyer solely for "uncivil" conduct. This article examines the puzzle of civility by addressing two fundamental questions. First, what are the obligations of civility? This question is answered using content analysis to analyze civility codes adopted by thirty-two state bar associations. From this analysis ten core …

Teaching Public Citizen Lawyering: From Aspiration To Inspiration, Mae Quinn

Journal Articles

A longtime social justice activist and clinical professor, Douglas Colbert,2 recently sought information from colleagues across the country3 for the second part of an important project examining a lawyer’s ethical obligation to engage in pro bono work during a time of crisis, such as the aftermath of Hurricane Katrina or 9/11.4 He sent out surveys to learn which schools actually taught the Preamble to the ABA Model Rules of Professional Conduct in ethics or other courses.5 As Professor Colbert’s letter explained, the Preamble states: “A lawyer, as a member of the legal profession, is a representative of clients, an officer …

Deferring Ineffectiveness Claims To Collateral Review: Ensuring Equal Access And A Right To Appointed Counsel, Thomas M. Place

Journal Articles

The article addresses a problem in criminal procedure that leaves an increasingly large number of defendants without a remedy to protect their right to effective assistance of counsel at trial and on direct appeal. The problem stems from the decision of states to move ineffectiveness claims from direct appeal to the post-conviction process and the fact that over half the states limit access to post-conviction remedies to defendants who are in custody. If the defendant’s prison sentence is completed during the period direct appeal is pending, or, in some jurisdictions, before the collateral review process is completed, the defendant is …

The Lesson Of The Irish Family Pub: The Elder Clinic Path To A More Thoughtful Practice, Katherine C. Pearson

Journal Articles

In this article, the Director of the Elder Law Clinic at Pennsylvania State University provides insight into the development of Elder Law as a unique discipline by tracking the history and challenges faced by her program as it approaches ten years of operation. A core focus of the Elder Law clinic, beyond practical experience, is to expose its students to the ethical issues confronted in Elder Law practice. Students in the clinic combine classroom discussions with practical experience representing clients, thereby becoming better prepared for their professional futures, while also gaining appreciation for the special concerns of the elderly client. …

An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry

Journal Articles

The Financial Action Task Force (FATF) is a thirty-eight-member intergovernmental organization whose mission is to fight money laundering and terrorism financing; the U.S. is a founding member of the FATF. The FATF is best known for its 40 Recommendations, many of which are directed towards various kinds of “gatekeepers” who are in a position to facilitate or inhibit money laundering and terrorism financing. (These were previously known as the 40+9 Recommendations). Lawyers are among those to whom the FATF’s recommendations apply. This article provides the introduction for the Journal of the Professional Lawyer’s Symposium about the application of the FATF …

Whom Should A Catholic University Honor?: "Speaking" With Integrity, Richard W. Garnett

Journal Articles

It has been more than two years since the announcement that our then-recently-elected President, Barack Obama, would be the featured speaker—and would receive an honorary degree—at the University of Notre Dame's graduation ceremony. No footnotes or citations are necessary for the report that the University's decision was controversial or the observation that the choice was both criticized and celebrated by students, faculty, alumni, political commentators, lay Catholics, and Church leaders.

In a USA Today opinion piece published a few days before the graduation ceremony, I suggested that the "angst at Notre Dame" was "not about what should be said at …

Navigating Tricky Ethical Shoals In Environmental Law: Parameters Of Counseling And Managing Clients, Kim Diana Connolly

Journal Articles

This article explores some of the ethical situations that environmental and natural resource lawyers can encounter when counseling clients. It begins by exploring the Model Rule of Professional Conduct (MRPC) 2.1, regarding counsel’s role as “advisor,” which provides that appropriate client counseling refers not only to law, but also to moral, economic, social, and political factors, when making decisions. It also explores the environmental lawyer’s ability to withdraw from representation pursuant to MRPC 1.16. It places the obligations and options under these rules and other mandates in the environmental and natural resource context, and encourages attorneys practicing in the area …

Attorney Referral, Negligence, And Vicarious Liability, Bruce Ching

Journal Articles

As a consequence of requests from clients or prospective clients, lawyers are often placed in a position of giving referrals, especially in situations of cross-specialty referrals (such as an estate planning attorney whose longtime client has become a party in a personal injury lawsuit) or cross-jurisdictional referrals (such as an attorney in Michigan who is contacted by a prospective client who must respond to a lawsuit that was filed in Ohio).

But if the lawyer who receives the referral commits malpractice in handling the case, can the lawyer who made the referral be held liable for the client's loss? This …

Lawyers Without Borders, Catherine A. Rogers

Journal Articles

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Lawyers Without Borders, Catherine A. Rogers

Journal Articles

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead

Journal Articles

The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President's Council of Bioethics; he served as the U.S. representative to UNESCO's Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently …

Should The Rooster Guard The Henhouse: A Critical Analysis Of The Judicial Conduct And Disability Act Of 1980, Donald E. Campbell

Journal Articles

The purpose of this Article is to critically examine the aspect of the Judicial Conduct and Disability Act of 1980 which seems to invite the most criticisms and raise the most questions of impropriety - namely, the initial receipt, review, and investigation of misconduct complaints. This article proposes that the current process of receiving, reviewing, and investigating judicial misconduct complaints should be amended. Specifically, the Act should incorporate into the current system an initial review and investigation by a magistrate judge. To this end, Part II sets out the procedures of how complaints are currently handled under the Act. Part …

What Is The Government's Role In Promoting Morals - Seriously, G. Marcus Cole

Journal Articles

In thinking about the government's proper role in promoting morals, it is helpful first to understand the nature of the disagreement. Part I of this Essay examines what is commonly meant by-as the great Lon Fuller described it-the "morality of law."' Following Professor Fuller's framework, this Essay distinguishes between two very different moralities of law: the "morality of duty" and the "morality of aspiration." The morality of duty consists of the basic proscriptions-against murder or theft, for example-required by any governmental authority. The morality of aspiration, however, is a different matter altogether. It comprises the rules associated with promoting virtue. …

Business Lawyers, Baseball Players, And The Hebrew Prophets, Thomas L. Shaffer

Journal Articles

This article is a reflection on the ethics of practiving law for business, building on the career of Scott Boras, who acts as agent and lawyer for professional baseball players. The reflection wonders at the clout corporate lawyers have over their clients, mentioning, of course, some personal experiences (back before the invention of moveable type) from the author's two years in a large business-oriented law firm, as well as on Mr. Boras's significant influence in the baseball world. The object, finally, is ethical reflection on such things as the particular a lawyer has when she in in house rather than …

"Technical" Defenses: Ethics, Morals, And The Lawyer As Friend, Thomas L. Shaffer, Robert F. Cochran Jr.

Journal Articles

This essay examines the question of lawyer-client counseling on the issue of raising "technical" defenses, such as statutes of limitations. The authors challenge the prevailing notion of American lawyers that technical defenses raise no moral issue worthy of dialogue between lawyers and clients. Looking at the history of legal ethics and modern treatment in European law, they suggest that questions of limitations do raise moral issues. They go on to explore how those moral issues ought to be discussed and decided between lawyers and clients, using the framework of lawyers as godfathers, hired guns, gurus, and friends that they laid …

On Lawyers And Moral Discernment, Robert E. Rodes

Journal Articles

Drawing on Jacques Maritain's doctrine of Knowledge through Connaturality, and on other authors including David Hume and Edmond Cahn, this article argues that judgments of right and wrong are arrived at primarily through immediate discernment, and only secondarily through the application of general principles. It is possible, therefore, for lawyers and clients to arrive at agreement on how to handle their cases, even though they do not agree on the general principles that apply.

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

Journal Articles

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer

Journal Articles

Consider two phrases in Professor Marie Failinger's charge to those of us discussing Jeffrey Stout's Democracy and Tradition, October 28, 2005, at Hamline University: (i) "How would we construct a real democratic sociality holding each other responsible for ethical life that would warrant trust in democracy? . . . and, (ii) How do the religious traditions help us reflect on this issue?"

My reflection, probably sectarian, refers more to where we come from than to what we choose. The reference here is to three communities, none of which is primarily concerned with "real democratic sociality." But none of them is …

The Vocation Of International Arbitrators, Catherine A. Rogers

Journal Articles

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …