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Full-Text Articles in Law

Lawyers For White People?, Jessie Allen Jan 2021

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate ...


Professionally Responsible Artificial Intelligence, Michael Hatfield Jan 2019

Professionally Responsible Artificial Intelligence, Michael Hatfield

Articles

As artificial intelligence (AI) developers produce more applications for professional use, how will we determine when the use is professionally responsible? One way to answer the question is to determine whether the AI augments the professional’s intelligence or whether it is used as a substitute for it. To augment the professional’s intelligence would be to make it greater, that is, to increase and improve the professional’s expertise. But a professional who substitutes artificial intelligence for his or her own puts both the professional role and the client at risk. The problem is developing guidance that encourages professionals ...


Mindfulness In Legal Ethics And Professionalism, Peter H. Huang Jan 2019

Mindfulness In Legal Ethics And Professionalism, Peter H. Huang

Articles

Mindfulness involves paying attention with curiosity in an intentional, open, and compassionate way to life as it unfolds moment to moment. Law students, lawyers, law professors, legal clients, and indeed all people can improve their lives through mindfulness. Mindfulness can lead to individual benefits and personal transformation. Mindfulness can also lead to societal benefits and social change. This invited symposium contribution exemplifies how mindfulness can facilitate the positive personal and professional development of law students by presenting excerpts of law students' answers discussing mindfulness to questions from the final examination of the course: Legal Ethics and Professionalism. Notably, none of ...


An Unfinished Dialogue: Congress, The Judiciary, And The Rules For Federal Judicial Misconduct Proceedings, Arthur D. Hellman Jan 2019

An Unfinished Dialogue: Congress, The Judiciary, And The Rules For Federal Judicial Misconduct Proceedings, Arthur D. Hellman

Articles

Federal judges can be impeached and removed from office for “high crimes and misdemeanors,” but what can be done to investigate and remedy less serious misconduct? Congress gave its answer 40 years ago when it passed the Judicial Conduct and Disability Act of 1980. The Act emerged from a series of complex interactions between Congress and the judiciary that could hardly be replicated today. Initially there was strong support, particularly in the Senate, for a centralized, “strictly adjudicatory” system, including a provision for removal of judges without impeachment. Over the course of several years, however, the judiciary persuaded Congress to ...


Celebrating Mundane Conflict, Deborah J. Cantrell Jan 2018

Celebrating Mundane Conflict, Deborah J. Cantrell

Articles

This Article interrogates the dominant conception of conflict and challenges the narrative of conflict as hard, difficult and painful to engage. The Article reveals two primary framing errors that cause one to misperceive how ubiquitous and ordinary is conflict. The first error is to misperceive conflict as categorical — something either is a conflict or it is not. People make that error as a way of trying to avoid conflict. People falsely hope that there might be a category of “not conflict,” like disagreements, that will be easier to navigate. The second error is to misperceive the world and individuals as ...


(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton Jan 2018

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Articles

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of delivery ...


Happy Birthday Siri! Dialing In Legal Ethics For Artificial Intelligence, Smartphones, And Real Time Lawyers, Jan L. Jacobowitz, Justin Ortiz Jan 2018

Happy Birthday Siri! Dialing In Legal Ethics For Artificial Intelligence, Smartphones, And Real Time Lawyers, Jan L. Jacobowitz, Justin Ortiz

Articles

No abstract provided.


Envisioning 100% Access To Justice In Colorado, Daniel M. Taubman, Melissa Hart Jan 2017

Envisioning 100% Access To Justice In Colorado, Daniel M. Taubman, Melissa Hart

Articles

No abstract provided.


Can Practicing Mindfulness Improve Lawyer Decision-Making, Ethics, And Leadership?, Peter H. Huang Jan 2017

Can Practicing Mindfulness Improve Lawyer Decision-Making, Ethics, And Leadership?, Peter H. Huang

Articles

Jon Kabat-Zinn, the founder of mindfulness-based stress reduction, defines mindfulness as paying attention in a curious, deliberate, kind, and non-judgmental way to life as it unfolds each moment. Psychologist Ellen Langer defines mindfulness as a flexible state of mind actively engaging in the present, noticing new things, and being sensitive to context. Langer differentiates mindfulness from mindlessness, which she defines as acting based upon past behavior instead of the present and being stuck in a fixed, solitary perspective, oblivious to alternative multiple viewpoints. Something called mindfulness is currently very fashionable and has been so for some time now in American ...


Addressing Cultural Bias In The Legal Profession, Debra Chopp Jan 2017

Addressing Cultural Bias In The Legal Profession, Debra Chopp

Articles

Over the past two decades, there has been an outpouring of scholarship that explores the problem of implicit bias. Through this work, commentators have taken pains to define the phenomenon and to describe the ways in which it contributes to misunderstanding, discrimination, inequality, and more. This article addresses the role of implicit cultural bias in the delivery of legal services. Lawyers routinely represent clients with backgrounds and experiences that are vastly different from their own, and the fact of these differences can impede understanding, communication, and, ultimately, effective representation. While other professions, such as medicine and social work, have adopted ...


Reasons For Counseling Reasonableness In Deploying Covenants-Not-To-Compete In Technology Firms, Robert W. Gomulkiewicz Jan 2016

Reasons For Counseling Reasonableness In Deploying Covenants-Not-To-Compete In Technology Firms, Robert W. Gomulkiewicz

Articles

Some states ban the enforcement of employee covenants-not-to-compete (“non-competes”) but most enforce them to the extent they are reasonable. As such, “reasonableness” provides the touchstone for enforceability analysis. The academic literature commenting on the reasonableness of non-competes is large and growing. Scholars usually direct their comments to judges, legislators, and other scholars.

Rarely do they address practicing lawyers. That omission is particularly unfortunate because practicing lawyers, more than judges, legislators, and scholars, can affect whether non-competes work both fairly and effectively. This Article fills that void by providing reasons, directed to practicing lawyers, for deploying non-competes in a reasonable manner ...


Practicing Practical Wisdom, Deborah J. Cantrell, Kenneth Sharpe Jan 2016

Practicing Practical Wisdom, Deborah J. Cantrell, Kenneth Sharpe

Articles

Wisdom is not an innate character trait; no one automatically is wise; wisdom is learned and acquired. More importantly, one can learn and acquire wisdom intentionally and skillfully — one can practice it. And, if the practice is structured in particular ways, the practice will improve one’s capacities to act with wisdom. This article clarifies theoretical muddiness and pedagogical imprecision by bringing together two important and robust strands of legal ethics literature. The first strand focuses on what the appropriate role of a lawyer is in a just society, while the second focuses on how a lawyer learns to be ...


Love, Anger, And Lawyering, Deborah J. Cantrell Jan 2016

Love, Anger, And Lawyering, Deborah J. Cantrell

Articles

This essay explores how mindfulness practices helped one lawyer, now legal scholar, explore the roles of love and anger in lawyering.


The Prosecutor's Duty To "Imperfect" Rape Victims, Tamara Rice Lave Jan 2016

The Prosecutor's Duty To "Imperfect" Rape Victims, Tamara Rice Lave

Articles

No abstract provided.


Meta-Mindfulness: A New Hope, Peter H. Huang Jan 2016

Meta-Mindfulness: A New Hope, Peter H. Huang

Articles

This Essay starts by tracing its humble origins to an earlier, related and unique law review article, namely, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting. This Essay describes various professional responses to Tiger Cub Strikes Back, provides an update of some developments in research about parenting and legal education since Tiger Cub Strikes Back, and recounts a few personal stories about mindfulness and related to being an ex-child prodigy. This Essay then analyzes meta-mindfulness, defined as mindfulness about mindfulness. This Essay discusses how mindfulness about mindfulness can help facilitate the positive transformation of ...


Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus Jan 2016

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

Articles

In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the ...


Assignments With Intrinsic Lessons On Professionalism (Or, Teaching Students To Act Like Adults Without Sounding Like A Parent), Beth H. Wilensky Jan 2016

Assignments With Intrinsic Lessons On Professionalism (Or, Teaching Students To Act Like Adults Without Sounding Like A Parent), Beth H. Wilensky

Articles

There is little question that law schools ought to teach their students professionalism – indeed, they are required to do so to maintain accreditation. And there is little question that the required legal writing and research course is one of the places it ought to be taught. But teaching students to adopt the norms of professional behavior — both in law school and after graduation — is a challenge to law faculties, and particularly to the experiential learning faculty who frequently are on the front lines of teaching professionalism. While there are many ways to teach students what professional and unprofessional behavior looks ...


Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis Nov 2015

Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis

Articles

Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality ...


Mindful Ethics And The Cultivation Of Concentration, Scott L. Rogers, Jan L. Jacobowitz Jan 2015

Mindful Ethics And The Cultivation Of Concentration, Scott L. Rogers, Jan L. Jacobowitz

Articles

No abstract provided.


How Improving Decision-Making And Mindfulness Can Improve Legal Ethics And Professionalism, Peter H. Huang Jan 2015

How Improving Decision-Making And Mindfulness Can Improve Legal Ethics And Professionalism, Peter H. Huang

Articles

Lawyers who behave unethically and unprofessionally do so for various reasons, ranging from intention to carelessness. Lawyer misconduct can also result from decision-making flaws. Psychologist Chip Heath and his brother Dan Heath, in their best-selling book, Decisive: How to Make Better Decisions in Life and Work, suggest a process to improve people’s decision-making. They introduce the acronym WRAP as the mnemonic for these decision-making heuristics: (1) Widen your options, (2) Reality-test your assumptions, (3) Attain distance before deciding, and (4) Prepare to be wrong. The WRAP process mitigates these cognitive biases: (1) narrow framing of a decision problem, (2 ...


Committee Opinions And Treasury Regulation: Tax Lawyer Ethics, 1965-1985, Michael Hatfield Jan 2014

Committee Opinions And Treasury Regulation: Tax Lawyer Ethics, 1965-1985, Michael Hatfield

Articles

This first section of the Article highlights the themes and tones of the 1945-1965 tax ethics literature, and then provides the political context and an overview of the legal changes in 1965-1985 that frame the tax ethics literature of that period. Section II begins in 1965, documenting the history of the first Formal Opinion (Opinion) on tax lawyer ethics issued by the American Bar Association's (ABA) Committee on Ethics and Professional Responsibility (PR Committee), which after considerable criticism in the ensuing years was substantially revised by a second Opinion in 1985. Section III is focused on 1980-1985, investigating the ...


Cultivating Professional Identity & Creating Community: A Tale Of Two Innovations, Jan L. Jacobowitz Jan 2014

Cultivating Professional Identity & Creating Community: A Tale Of Two Innovations, Jan L. Jacobowitz

Articles

No abstract provided.


Paternalistic Interventions In Civil Rights And Poverty Law: A Case Study Of Environmental Justice, Anthony V. Alfieri Jan 2014

Paternalistic Interventions In Civil Rights And Poverty Law: A Case Study Of Environmental Justice, Anthony V. Alfieri

Articles

No abstract provided.


The Role Of Mindfulness In The Ongoing Evolution Of Legal Education, Scott L. Rogers Jan 2014

The Role Of Mindfulness In The Ongoing Evolution Of Legal Education, Scott L. Rogers

Articles

No abstract provided.


Mindful Ethics - A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott L. Rogers Jan 2014

Mindful Ethics - A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott L. Rogers

Articles

Aristotle spoke of virtue and ethics as a combination of practical wisdom and habituation-an individual must learn from the application of critical reasoning skills to experience. Perhaps one of the earliest proclamations of the value of experiential learning, the Aristotelian view, reappears throughout history and is captured once again by the Carnegie Foundation's Report on Legal Education, which includes a call for instruction that provides practical skills and ethical grounding to complement the teaching of legal analysis. The Carnegie Report continues to play a role in the ongoing discussion of the need to reform legal education; a debate that ...


Lawyers Beware: You Are What You Post - The Case For Integrating Cultural Competence, Legal Ethics, And Social Media, Jan L. Jacobowitz Jan 2014

Lawyers Beware: You Are What You Post - The Case For Integrating Cultural Competence, Legal Ethics, And Social Media, Jan L. Jacobowitz

Articles

No abstract provided.


Cy Pres In Class Action Settlements, Rhonda Wasserman Jan 2014

Cy Pres In Class Action Settlements, Rhonda Wasserman

Articles

Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions – they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”

Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the class ...


Book Review, Peter H. Huang Jan 2013

Book Review, Peter H. Huang

Articles

This review of Leo Katz's book, Why the Law is So Perverse, addresses three questions. First, does Katz draw the appropriate normative conclusions about legal perversities based on their connections to social choice theory? In other words, what are the legal ethics and professionalism implications of his book? Second, how does each of the legal perversities in the book follow from a particular social choice theory result? In other words, what is the precise theoretical connection between each of the legal perversities discussed and an impossibility theorem in social choice theory? Third, can we reinterpret our understanding of the ...


Professionalism And The New Normal, Philip J. Weiser Jan 2013

Professionalism And The New Normal, Philip J. Weiser

Articles

No abstract provided.


Fidelity Diluted: Client Confidentiality Gives Way To The First Amendment & Social Media In Virginia State Bar, Ex Rel. Third District Committee V. Horace Frazier Hunter, Jan L. Jacobowitz, Kelly Rains Jesson Jan 2013

Fidelity Diluted: Client Confidentiality Gives Way To The First Amendment & Social Media In Virginia State Bar, Ex Rel. Third District Committee V. Horace Frazier Hunter, Jan L. Jacobowitz, Kelly Rains Jesson

Articles

No abstract provided.