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Articles 1 - 30 of 31
Full-Text Articles in Law
Lawyers As Nonlawyers In Child-Custody And Visitation Cases: Questions From The Legal Ethics Perspective Response, Bruce A. Green
Lawyers As Nonlawyers In Child-Custody And Visitation Cases: Questions From The Legal Ethics Perspective Response, Bruce A. Green
Faculty Scholarship
The Child Advocacy Clinic at Indiana University School of Law-Bloomington ("Indiana Clinic") takes as a premise that, in custody and visitation disputes, children may be best served by lawyers as guardians ad litem, rather than by lawyers qua lawyers, on one hand, or by nonlawyer guardians ad litem, on the other. In contrast, participants in a national conference at Fordham Law School' concluded two years ago that "[a] lawyer appointed or retained to serve a child in a legal proceeding should serve as the child's lawyer." That is, the lawyer should regard the child as a client, not a ward. …
Of Labor Law And Dissonance Colloquy, James J. Brudney
Of Labor Law And Dissonance Colloquy, James J. Brudney
Faculty Scholarship
What accounts for the dissonance between the meaning of our national labor law, as decreed primarily by federal judges, and the social and economic realities of workplace relationships addressed by that law? In his darkly eloquent commentary, Professor Getman acknowledges that such dissonance is not unique to the law governing labor-management relations. Yet the courts' often mistrustful approach toward employee rights under the National Labor Relations Act ( NLRA" or "Act") has had a special impact. The NLRA emerged at a time of social turbulence, and was based on a recognized need to redress the fundamental inequality of bargaining power …
Mediation And Some Lessons From The Uniform State Law Experience , James J. Brudney
Mediation And Some Lessons From The Uniform State Law Experience , James J. Brudney
Faculty Scholarship
Virtually every practicing attorney and legal academic first encountered uniform statutes when studying the Uniform Commercial Code (UCC) in law school. Yet the UCC's widespread acceptance and periodic renewal are not the legacy of most uniform law ventures. Taking a harder look at the uniform statutory process and its products may allow participants in a new effort to set realistic goals, or at least assist them in anticipating problems they are likely to face. This Article offers an overview and some pointers regarding the distinct challenge of developing a successful uniform mediation law. It discusses problems that stem from the …
Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan
Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan
Faculty Scholarship
This Article suggests, on the broadest level, that the history of the "right to passage" in the past two centuries is explicable only in terms of the complex interaction between formal legal doctrine on the one hand and social and political pressures on the other. Specific challenges to public order significantly shaped the evolution of legal rules, but these rules, once established, constrained official action and compelled the authorities at critical junctures to develop countervailing strategies. This exploration confirms that neither an externalist nor internalist approach to legal history by itself adequately explains historical change and, moreover, that the relative …
Conflicts Of Interest In Legal Representation: Should The Appearance Of Impropriety Rule Be Eliminated In New Jersey - Or Revived Everywhere Else , Bruce A. Green
Conflicts Of Interest In Legal Representation: Should The Appearance Of Impropriety Rule Be Eliminated In New Jersey - Or Revived Everywhere Else , Bruce A. Green
Faculty Scholarship
Sixty-five years ago, an American Bar Association (ABA) committee interpreting the Canons of Professional Ethics (Canons) concluded that it would be professionally improper for a part-time prosecutor to agree to defend an individual in a civil action while simultaneously prosecuting him on felony charges. The committee acknowledged that the representation of conflicting interests is ordinarily proper with the respective clients' consent. But it said that client consent does not suffice in a case involving a public officer, who has a duty "to be and remain above all suspicion, even at personal financial sacrifice." It concluded that such "[a]n attorney should …
Investment Management Arrangements And The Federal Securities Laws, Harvey E. Bines, Steve Thel
Investment Management Arrangements And The Federal Securities Laws, Harvey E. Bines, Steve Thel
Faculty Scholarship
No abstract provided.
Neighborhood Legal Services As House Counsel To Community-Based Efforts To Achieve Economic Justice: The East Brooklyn Experience, Brian Glick
Faculty Scholarship
No abstract provided.
Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg
Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg
Faculty Scholarship
Historically, law and government regulation have established default rules for information policy, including constitutional rules on freedom of expression and statutory rights of ownership of information. This Article will show that for network environments and the Information Society, however, law and government regulation are not the only source of rule-making. Technological capabilities and system design choices impose rules on participants. The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations. Even user preferences and technical choices create overarching, local default rules. This Article argues, in essence, that the set of …
Force Majeure And Hardship Under The Unidroit Principles Of International Commercial Contracts, Joseph Perillo
Force Majeure And Hardship Under The Unidroit Principles Of International Commercial Contracts, Joseph Perillo
Faculty Scholarship
No abstract provided.
Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley
Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley
Faculty Scholarship
That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In …
Role Of Personal Values In Professional Decisionmaking, The , Bruce A. Green
Role Of Personal Values In Professional Decisionmaking, The , Bruce A. Green
Faculty Scholarship
The 1908 Canons of Professional Ethics directed a lawyer to "obey his own conscience."' Lawyers receive similar advice today. Writings on legal practice encourage lawyers to make professional decisions based on their moral values and religious beliefs, as expressed in the familiar injunction: to be charted by one's own "moral compass." Underlying this advice is an assumption about the professional norms - namely, that they accommodate, if not contemplate, lawyers' reliance on personal values. This assumption finds some support in the contemporary codes of lawyer conduct, which acknowledge a role for the lawyer's "conscience" or "moral judgment." Yet, it is …
Achieving Full Effectiveness Of Community Law: The Court Of Justice's Third Stage Of Enforcement Rules Implementation, Compliance And Effectiveness: Emerging Issues On Compliance And Effectiveness Within The European Union, Roger J. Goebel
Faculty Scholarship
Today we will be considering the experience of the European Union (EU) as a possible model for international law. We will start with Roger J. Goebel, director since 1984 ofthe Center of European Union Law, Fordham Law School.
Changing U.S. Tax Jurisdiction: Expatriates, Immigrants, And The Need For A Coherent Tax Policy, Jeffrey M. Colon
Changing U.S. Tax Jurisdiction: Expatriates, Immigrants, And The Need For A Coherent Tax Policy, Jeffrey M. Colon
Faculty Scholarship
One of the most contentious tax legislative battles of the 104th Congress erupted over the Clinton administration's proposal to amend the U.S. tax rules applicable to expatriates. The administration proposed taxing the abandonment of either U.S. citizenship or long-term U.S. tax residency. The administration's proposal responded to a number of articles in the popular press that described the U.S. tax benefits of expatriation and divulged the names of well-heeled expatriates. Proponents claimed that Congress needed to revise the taxation of expatriates to prevent "billionaire Benedict Arnolds" from avoiding "their fair share" of U.S. income taxes. Opponents argued that the Clinton …
Attorney-Client Privilege, Ethical Rules, And The Impaired Criminal Defendant, The , James A. Cohen
Attorney-Client Privilege, Ethical Rules, And The Impaired Criminal Defendant, The , James A. Cohen
Faculty Scholarship
Attorneys who represent possibly incompetent defendants charged with criminal conduct face difficult ethical issues, implicating professional duties of loyalty, zealous representation, and confidentiality-as an ethical question and as a matter of the law of evidence. The principles of agency underlying the attorney-client relationship are also implicated when the defendant's capacity is in doubt. In the ordinary criminal case, the client has at least implicitly authorized his lawyer's conduct. But if the defendant is impaired, the client may not have the mental capacity to authorize the attorney's actions. Defense counsel representing the possibly incompetent criminal defendant will often be the only …
Relearning Founding Lessons: The Removal Power And Joint Accountability, Martin S. Flaherty
Relearning Founding Lessons: The Removal Power And Joint Accountability, Martin S. Flaherty
Faculty Scholarship
No abstract provided.
Neighborhood Legal Services As House Counsel To Community-Based Efforts To Achieve Economic Justice: The East Brooklyn Experience, Martin S. Flaherty
Neighborhood Legal Services As House Counsel To Community-Based Efforts To Achieve Economic Justice: The East Brooklyn Experience, Martin S. Flaherty
Faculty Scholarship
No abstract provided.
Congress' Temptation To Defect: A Political And Economic Theory Of Legislative Resolutions To Financial Common Pool Problems, Susan Block-Lieb
Congress' Temptation To Defect: A Political And Economic Theory Of Legislative Resolutions To Financial Common Pool Problems, Susan Block-Lieb
Faculty Scholarship
No abstract provided.
Coercion, Deception, And Other Demand-Increasing Practices In Antitrust Law, Mark R. Patterson
Coercion, Deception, And Other Demand-Increasing Practices In Antitrust Law, Mark R. Patterson
Faculty Scholarship
No abstract provided.
Statutory Findings And Insider Trading Regulation, Steve Thel
Statutory Findings And Insider Trading Regulation, Steve Thel
Faculty Scholarship
No abstract provided.
Legal Coherentism, Benjamin C. Zipursky
Interests And Rights Of The Interracial Family In A Multiracial Racial Classification, The Proceedings Of The Third Annual Mid-Atlantic People Of Color Legal Scholarship Conference February 13-15, 1997: Part 2, Tanya K. Hernandez
Faculty Scholarship
The public dissemination of census data invites battles over how human beings will be known. One census battle that has been at the forefront of the public debate is the demand for a "multiracial" category. The multiracial classification, as proposed, would be one of the race categories a respondent could choose in lieu of those currently listed by the Office of Management of Budget (OMB): American Indian or Alaskan Native, Asian or Pacific Islander, Black, White, or Other. The stated aim of the new racial classification is to obtain a more specific census count of the number of mixed-race persons …
Construction Of Race And Class Buffers In The Structure Of Immigration Controls And Laws, The Symposium: Citizenship And Its Discontents: Centering The Immigrant In The Inter/National Imigination: Part Ii: Section Three: Rethinking Agency: Global Economic Restructuring And The Immigrant, Tanya K. Hernandez
Faculty Scholarship
In the midst of current anti-immigration sentiment, which is motivating dramatic changes in the United States immigration laws, there exists the myth that prior immigration laws were more equitable and humanitarian. Yet historical analysis reveals that immigration law has been put to uses far from idyllic, and has always been concerned with the racial makeup of the nation. Specifically, national preoccupation with the maintenance of a "White country" is reflected in immigration law. The continued national preference for White immigrants is explicitly featured in the visa profiling codes of U.S. embassies and consulates. This Essay employs a race-conscious lens to …
Getting To Death: Are Executions Constitutional?, Deborah W. Denno
Getting To Death: Are Executions Constitutional?, Deborah W. Denno
Faculty Scholarship
This Article addresses the question of when a method of executing a capital defendant amounts to cruel and unusual punishment under the Eighth Amendment. This Article contends that execution methods cases, while reaching the right result, fail to provide a sufficiently comprehensive Eighth Amendment standard for determining the constitutionality of any execution method. The Article proposes a test that better comports with the Court's Eighth Amendment case law and more appropriately considers scientific determinations of excessive pain. To apply this test, the Article studies each state's legislative changes in execution methods during the Twentieth Century as well as accounts of …
Gender Differences In Biological And Sociological Predictors Of Crime, Deborah W. Denno
Gender Differences In Biological And Sociological Predictors Of Crime, Deborah W. Denno
Faculty Scholarship
One of the many goals of the Biosocial Study that I directed was determining whether there were gender differences among the numerous possible correlates of crime that the study examined. The purpose of my presentation today is to describe the Biological Study and its results, particularly as they relate to gender differences in crime. Another aim is to respond briefly to some of the potential political reactions to the study, despite its results. I will begin with a quick account of historical attitudes toward gender differences in crime. I will then discuss the Biosocial Study and its major findings relevant …
Interjurisdictional Preclusion, Howard M. Erichson
Interjurisdictional Preclusion, Howard M. Erichson
Faculty Scholarship
Res judicata is hard enough already. Consider it at the interjurisdictional level, and we are asking for headaches. But consider it at that level we must, because litigation trends make interjurisdictional preclusion1 more important than ever. Lawyers, judges, litigants, and other litigation participants increasingly must contemplate the possibility that a lawsuit will have claim-preclusive or issue-preclusive effect in a subsequent suit in another jurisdiction. This article examines the problem of interjurisdictional preclusion, and, in particular, the problem of choice of preclusion law. Choice of-preclusion law cannot be appreciated in the abstract, but rather must be considered in light of litigation …
Intent And Incoherence, Sheila R. Foster
Intent And Incoherence, Sheila R. Foster
Faculty Scholarship
In this Article, Professor Sheila Foster dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area continuously restate, and critique, the "rule" of intent as a uniform standard in constitutional law. However, it is clear from the Supreme Court's jurisprudence (and that of the lower federal courts) that different levels of consciousness can satisfy the discriminatory intent standard, and hence violate the Equal Protection Clause. Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this Article. Professor Foster …
Intent And Incoherence, Sheila R. Foster
Intent And Incoherence, Sheila R. Foster
Faculty Scholarship
In this Article, Professor Sheila Foster dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area continuously restate, and critique, the "rule" of intent as a uniform standard in constitutional law. However, it is clear from the Supreme Court's jurisprudence (and that of the lower federal courts) that different levels of consciousness can satisfy the discriminatory intent standard, and hence violate the Equal Protection Clause. Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this Article. Professor Foster …
Less Is More: Teaching Legal Ethics In Context Symposium: 1997 W. M. Mikeck Foundation Forum On The Teaching Of Legal Ethics, Bruce A. Green
Less Is More: Teaching Legal Ethics In Context Symposium: 1997 W. M. Mikeck Foundation Forum On The Teaching Of Legal Ethics, Bruce A. Green
Faculty Scholarship
We who teach legal ethics employ many of the teacher's arts to win our students' appreciation for the course. We do not always succeed. As Deborah Rhode has observed, "[t]here are inherent problems and infinite ways to fail in teaching this subject." Yet, we continue to seek a method for teaching the course effectively. If nothing else, our efforts have led to the development of a substantial body of literature on teaching legal ethics to which this Article will contribute. Its focus is on what, rather than how, to teach. This Article asks: What should be the content of the …
Toward Uniform Standards Of Conduct For Mediators Symposium: The Lawyer's Duties And Responsibilities In Dispute Resolution, John D. Feerick
Toward Uniform Standards Of Conduct For Mediators Symposium: The Lawyer's Duties And Responsibilities In Dispute Resolution, John D. Feerick
Faculty Scholarship
It can no longer be doubted that alternative dispute resolution ("ADR") as a substitute for court-based litigation is growing in appeal. The high costs, adversarial nature, and time of traditional litigation have led to the development and popularity of other dispute resolution alternatives. ADR is making substantial inroads into the legal mainstream and is increasingly used in a wide variety of contexts by courts; federal, state, and local governments; businesses and private individuals. According to a recent survey conducted by the National Institute for Dispute Resolution, twenty-eight state courts now have mandatory, non-binding arbitration programs; more than half of the …
Sexuality, Rape, And Mental Retardation, Deborah W. Denno
Sexuality, Rape, And Mental Retardation, Deborah W. Denno
Faculty Scholarship
In this article, Professor Denno addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The article first explores the early treatment of mental retardation. It next demonstrates how old stereotypes influence the moralism inherent in modern conceptions of consent in rape determinations. Illustrating the point with reference to the Glen Ridge rape case, the article shows how courts applying contemporary rape statutes typically hold mentally retarded individuals to a higher standard of consent than nonretarded individuals. As a result, courts are hurting the very people they are supposed to protect …