Law Commons^™

Trust Me, I'M A Pragmatist: A Partially Pragmatic Critique Of Pragmatic Activism, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Pragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive framework for addressing some of my critiques.

To highlight the contours of pragtivism, this Article tells the story of …

The Prosecutor’S Contribution To Wrongful Convictions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor is viewed by the public as a powerful law enforcement official whose responsibility is to convict guilty people of crimes. But not everybody understands that a prosecutor’s function is not only to win convictions of law-breakers. A prosecutor is a quasi-judicial official who has a duty to promote justice to the entire community, including those people charged with crimes. Indeed, an overriding function of a prosecutor is to ensure that innocent people not get convicted and punished.

A prosecutor is constitutionally and ethically mandated to promote justice. The prosecutor is even considered a "Minister of Justice" who has …

The Most Dangerous Power Of The Prosecutor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This is the James D. Hopkins Memorial Lecture in honor of Judge Hopkins, who was the Dean of Pace Law School from 1982 to 1983 and earlier served with great distinction on the New York Appellate Division's Second Judicial Department. Judge Hopkins served on that court when I worked in the special prosecutor's office, and as head of the appeals bureau, I argued several cases in Judge Hopkins' court. One case stands out, the case of Salvatore Nigrone v. Murtagh. It was an extensive undercover investigation. My office used informants, wiretaps, and a sham arrest to expose corrupt attempts to …

Economic Suicide: The Collision Of Ethics And Risk In Securities Law, Barbara Black, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The first part of this article looks at whether there are any legal principles derived from regulation or the case law to support an “economic suicide” claim. The second part of the article reviews arbitrators' awards to determine whether arbitrators do, in fact, decide favorably on economic suicide claims. The article also looks at some arbitrators' awards that appear to recognize an economic suicide claim to identify any factors that may lead arbitrators to award damages to the claimant. Finally, in the third part, we address whether policy considerations support an extension of recognized brokers' duties to include a duty …

A Response To Russell Pearce, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

There is not very much to criticize in what Professor Pearce has said about the MacCrate Report. Mostly, therefore, I will just amplify some of the points that I regard as among the most important. Before that, however, I want to mention some quibbles. First, I have always been bothered a bit when people describe the lawyer's role as that of a hired gun. The term “hired gun” is (if you'll pardon the expression) loaded. It does not, moreover, correctly capture either the good or the questionable of what lawyers actually try to do when representing their clients. Real hired …

The National Association Of Honest Lawyers: An Essay On Honesty, "Lawyer Honesty" And Public Trust In The Legal System, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The growing public disquiet about lawyer ethics is not mainly because people think lawyers neglect their professional standards. Rather, the main problem is the belief among lawyers that the duty of loyalty to clients requires a lawyer to mislead. Specifically, the ethical duty of confidentiality and the ethical duty of zealous advocacy are interpreted together to mean that lawyers must conceal some facts (‘confidentiality‘) while forcefully asserting others. This mis-coupling of these two key ethical duties has an inevitable tendency to produce a kind of partial-truth advocacy in which the lawyer knowingly distracts attention from the truth and fosters misconceptions …

The 'Ascent Of Man': Legal Systems And The Discovery Of An Environmental Ethic, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

A decade ago, firefighters in a warehouse on the Rhine in Switzerland washed chemicals, solvents, and mercury into the river, destroying all life in the river for miles, killing millions of fish, and endangering the water supplies of cities in Germany and the Netherlands. This tragedy galvanized the river valley states into action. They vowed to clean up the river, not just from that incident but from the effects of having used the river as a sewer for two centuries. But how clean is clean? The goal for this calculated plan, which will take decades to achieve, is symbolized by …

Prosecutorial Misconduct In Presenting Evidence: "Backdooring" Hearsay, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Rules of evidence are designed to bring about just and informed decisions. One of these rules, the hearsay rule, is designed to ensure that juries receive reliable evidence, and that out-of-court statements ordinarily are inadmissible. Prosecutors are well aware of these evidentiary restrictions, but occasionally seek to circumvent them. The author describes methods used by some prosecutors to manipulate the hearsay rule and thereby distort the truth-finding process of the trial.

The Former Client's Disqualification Gambit: A Bad Move In Pursuit Of An Ethical Anomaly, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

This Article contends that the successive conflict and imputed disqualification rules in combination are both bad law and bad ethics and that a different approach would be better for clients, for the adversary system, and for the profession. Part I of the Article analyzes the development of the successive conflict and the imputed disqualification doctrines. It demonstrates that two different, not always consistent, theories caused the successive conflict disqualification principles to develop erratically, resulting in a set of rules incompatible with either supporting rationale. Part II explains why the incorporation of that set of rules into the Model Rules of …

Why Prosecutors Misbehave, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The author, perhaps the nation's top authority on prosecutorial misconduct, raises and analyzes two questions: Why does this misconduct occur? (It often pays off.) And why does it continue? (There are no effective sanctions.)

Toward A Common Law For Undercover Investigations - A Book Review Of Abscam Ethics: Moral Issues And Deception In Law Enforcement, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Confidentiality And The "Dangerous" Patient: Implications Of Tarasoff For Psychiatrists And Lawyers, Vanessa Merton

Elisabeth Haub School of Law Faculty Publications

This essay examines the role conflict of the professional whose patient or client may be “dangerous” to others, and the ways in which professional standards of ethics and practice, incorporated by judicial ruling, contribute to that role conflict. The paper's focus is on the plight of the psychiatrist, but it also addresses the strain felt by the lawyer who either represents such a client or is asked to advise a psychiatrist who has such a patient. It suggests that health-care providers are not altogether justified in assigning sole responsibility for some of their professional difficulties to the law's incursions on …

Abscam, The Judiciary, And The Ethics Of Entrapment, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article surveys the development of the competing threads of entrapment theory. Part II shows how these theories were applied in the Abscam prosecutions. Part III turns to the predisposition test and demonstrates its analytical flaws and its ineffectiveness in restraining he improper use of inducements in undercover investigations. Part IV offers specific suggestions for a federal entrapment statute to remedy these defects. The statute allows an entrapment defense where the undercover techniques used fall outside a narrowly defined range of permissible conduct. If the government's conduct is permissible, the statute nevertheless requires the decision-maker to examine …