Law Commons^™

Busting Up The Pretrial Industry, Andrew S. Pollis

Faculty Publications

It is by now axiomatic that the objective of the civil lawsuit has evolved. Litigants no longer routinely resolve their disputes through trial but instead engage in pretrial battles designed to extract favorable settlements. Modern litigation revolves around protracted discovery and dispositive motions, driven by two primary dynamics: (1) the maximization of fees for lawyers who charge their clients by the hour; and (2) the desire to make litigation as painful as possible for an adversary so that settlement becomes the adversary’s better option. We have, in short, fostered a pretrial industry that can relegate the merits of a dispute …

When The Empty Adr Chair Is Occupied By A Litigation Funder, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The discussion about the $140 million jury verdict against Gawker media for posting a sex video of Terry Bollea, professionally known as Hulk Hogan, having sex with his best friend’s wife, quickly shifted to a conversation about the ethics of litigation funding when it was finally disclosed that Peter Thiel had funded Bollea’s litigation. The backstory reveals that Gawker outed Thiel, revealing his homosexuality ten years earlier in a more conservative time when such a revelation might have impacted Thiel’s earning capacity. Thiel, an icon in Silicone Valley and a co-founder of PayPal, promised revenge. Thiel got his revenge, …

Collaboration And Intention: Making The Collaborative Family Law Process Safe(R), Margaret Drew

Faculty Publications

Since the beginning of the collaborative family law movement, commentators from various professions have discouraged collaborative lawyers from accepting cases involving intimate partner abuse. The collaborative process, with its face to face meetings and emphasis on transparency and good faith, carries with it many risks for the partner who has been abused and who is attempting to end the relationship with the abusive partner. There may be occasions, however, when the at-risk partner believes that the collaborative process will enhance her safety or at least provide her with less exposure to future harm than other resolution processes. This article will …

Is Corporate Patriotism A Virtue?, David Yosifon

Faculty Publications

American social and political discourse attests to widespread concern about whether domestic corporations can be counted on to serve the national interest. This issue is especially pressing in an era of international corporate operations, in which firms can send jobs and tax revenues overseas, devastating local communities even as they boost the prospects of workers in a foreign land, and the interests of capital spread across the globe. Firms founded in America can also disperse across the border productive resources that could otherwise be nationalized or made available to the homeland in times of crisis or war. Indeed, the shareholder …

Opting Out Of Shareholder Primacy: Is The Public Benefit Corporation Trivial?, David Yosifon

Faculty Publications

The central command of corporate governance law is that directors must serve the shareholder interest. Directors may not sacrifice shareholder value in favor of other corporate stakeholders or other interests. In this Article, I examine whether this rule of shareholder primacy is mandatory, or merely a default rule which can be altered through private ordering. I argue that Delaware’s corporate law, the most important corporate law in the United States, should be understood to have long-permitted privately-ordered deviation from shareholder primacy. This assessment, however, is at least complicated by the recent legislative creation of the Public Benefit Corporation (PBC). The …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

Ethical Implications Of Intellectual Property In Africa, Dick Kawooya

Faculty Publications

No abstract provided.

Teaching Access, Or Freedom Of Information Law, Richard J. Peltz-Steele

Faculty Publications

Based on the author's experience developing and administering the course and materials, this article provides an introduction and resources to teach a graduate journalism or professional law school course on access to government, commonly called "freedom of information law", which may be constructed as a capstone course in law school. The appendices provide supporting material and references.

Collaboration And Coercion: Domestic Violence Meets Collaborative Law, Margaret B. Drew

Faculty Publications

‘Collaboration and Coercion’ addresses the systemic and individual concerns that arise when family members that have experienced abuse enter into the collaborative law process. A form of alternative dispute resolution, collaborative law is a method of resolving disputes without engagement of the legal system. The author addresses the structural and cultural difficulties that survivors of abuse encounter throughout the process as well as the ethical concerns that are raised when collaborative practitioners accept cases where the parties have a history of coercion within the intimate relationship.

Organizational Management Of Conflicting Professional Identities, Cassandra Burke Robertson

Faculty Publications

Professionals in the military have suffered criticism for their failure to counter military excess in the so-called "War on Terror" - especially in the area of torture and maltreatment of detainees. Much of the criticism leveled against such professionals has assumed that they were bad actors who were making a conscious choice to avoid the strictures of their code of ethics. This Article counters that narrative by applying identity theory to offer a more situations explanation. It argues that some of these professional failures arise from the cognitive incentives faced by individuals in an organization that rewards organizational deference over …

Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz

Faculty Publications

Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values, your …

Intellectual Property Rights In An Attorney’S Work Product, Ralph D. Clifford

Faculty Publications

This paper addresses the main intellectual property consequences of practicing law and whether attorneys can prevent others from using their work-product. The article does not assume that the reader is an expert in intellectual property law; instead, it is designed to answer the types of questions practitioners have about their rights.

Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal

Faculty Publications

Commentators who have examined the DNA exonerations have noted the disturbing role that prosecutors have played in these wrongful convictions. Another significant contributor to these miscarriages of justice is the misuse of expert testimony, a third of the cases according to some sources. This Article examines the intersection of these two factors - the prosecutor's role in using and presenting expert testimony.

Prosecutorial misconduct may occur during most stages of a trial, beginning with the selection of witnesses, including the improper "shopping" for experts. Additional abuses occur when prosecutors fail to abide by rules governing the pretrial disclosure of scientific …

Prosecutors And Corrupt Science, Kevin C. Mcmunigal

Faculty Publications

No abstract provided.

The Professionalization Of Law Firm In-House Counsel, Elizabeth Chambliss

Faculty Publications

This Article examines the structural evolution of the "firm counsel" position from a volunteer, part-time position filled by an existing partner to a specialized, often full-time position increasingly filled by career in-house counsel. Based on focus groups and interviews with firm counsel, as well as participant observation at meetings and conferences aimed at firm counsel, I examine how the professionalization of the firm counsel position affects: (1) the definition of the firm as the client; (2) the authority of firm counsel with partners; and (3) firm counsels' professional commitments and attitudes about ethical rules. I find that, from a regulatory …

Do Ask And Do Tell: Rethinking The Lawyer’S Duty To Warn In Domestic Violence Cases, Margaret B. Drew, Sarah Buel

Faculty Publications

Empirical data document that while domestic violence victims face high risk of recurring abuse, batterers’ lawyers may be privy to information that could avert further harm. Attorneys owe a duty of confidentiality to their clients that can be breached only in extraordinary circumstances, such as when counsel learns her client plans to commit a crime. To resolve the tension between client confidentiality and victim safety, this Article argues that, in the context of domestic violence cases, lawyers have an affirmative duty to (1) screen battering clients who have indicated a likelihood of harming others, (2) attempt to dissuade them from …

Merit Vs. Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Nirvana Fallacy In Law Firm Regulation Debate, Elizabeth Chambliss

Faculty Publications

Most commentators would agree that large law firms have outgrown collegial management and self-regulation. Yet lawyers generally have been slow to recognize the benefits of bureaucratic management, and traditionally have resisted and lamented the move toward more bureaucratic forms. Many lawyers view the infrastructure of bureaucratic management - that is, formal policies and procedures and specialized managerial personnel - as necessarily undermining professional ethics and individual accountability within firms.

This article questions the empirical basis for such concerns. I argue that the fear that centralized management controls will undermine individual accountability rests on an implicit comparison to a nostalgic, collegial …

Professional Responsibility Redesigned: Sparking A Dialogue Between Students And The Bar, Lois R. Lupica

Faculty Publications

In recent years, there have been many public and private, formal and informal complaints about the behavior of lawyers. Moreover, lawyers' tenuous reputation for honesty and integrity has been tarnished by recent, well-publicized scandals. The public, as well as members of the bench and bar, have further decried a decline in attorney professionalism. More than once, it has been suggested that in some way, failings of law schools are to blame. In response to these observations about the professional behavior of lawyers and as a result of the author's experiences of teaching a traditional, Socratic-method Professional Responsibility class for many …

The Ethics Of Using Judges To Conceal Wrongdoing, John P. Freeman

Faculty Publications

No abstract provided.

Popular Culture As A Lens On Legal Professionalism, Hillary B. Farber, Alexander Scherr

Faculty Publications

This Article argues that the cultural images of lawyering provide opportunities for teaching professionalism that go well beyond the teaching of ethical rules using hypothetical facts. We contend that use of different media allows teachers to chart the broad middle ground between disciplinary minima and aspirational maxima - the map of realistic professional practice. This ground includes both rule- and conduct-based ideas of professionalism: careful role definition; responsible practice management; appropriate balance between public and private commitments; and concerns over manners, dress, and work ethic. The middle ground also includes less traditional content, discussion of which brings students to appreciate …

Promoting Effective Ethical Infrastructure In Large Law Firms: A Call For Research And Reporting, Elizabeth Chambliss, David B. Wilkins

Faculty Publications

No abstract provided.

Embryonic Stem Cell Research As An Ethical Issue: On The Emptiness Of Symbolic Value, Kevin Quinn

Faculty Publications

The ability to generate a wide variety of stem cell lines (in relatively renewable tissue cultures) opens up a whole new world of breathtaking possibilities for science and medicine. The possibilities include: "in vitro studies of normal embryo-genesis, human gene discovery, and drug and teratogen testing and as a renewable source of cells for tissue transplantation, cell replacement, and gene therapies." But it also opens up a world of complications.

Human EG and ES cells must be recovered from aborted fetuses or live embryos. Because primordial gonadal tissue is removed from fetuses after their death, the derivation of EO cells …

Media Law & Ethics Enter The 21st Century, Introduction To Symposium, Richard J. Peltz-Steele

Faculty Publications

We stand now on the verge of the twenty-first century: an artificial construct yes, but a culturally significant time nonetheless. We are the world the Hutchins Commission foresaw: the world of nations seeking understanding, seeking destiny. We will not predict the future with perfect accuracy, though we will try, because that is out nature. In our effort, we must be mindful that the questions we are asking are not new; they have been asked before and will be asked again. But let us see what we have to say about them today.

Law, Ethics, And The Good Samaritan: Should There Be A Duty To Rescue?, Kathleen M. Ridolfi

Faculty Publications

The interdependence of law and morality, the circular influences of one on the other, puts us in a position to fear what we want the law to do. We embrace a legal system that promotes morality, that makes better citizens of us, but we worry that the law will cross an elusive line and infringe on individual rights. For this reason we are careful, and should remain so, in limiting enforcement of laws to reflect only those values that emerge from the overall agreement of the community where they will be enforced.

In this paper, I have focused primarily on …

Defending Truth, Cynthia V. Ward, Peter A. Alces

Faculty Publications

No abstract provided.

In-House Live-Client Clinical Programs: Some Ethical Issues, James E. Moliterno

Faculty Publications

No abstract provided.

A Bludgeon By Any Other Name: The Misuse Of Ethical Rules Against Prosecutors To Control The Law Of The State, Frank O. Bowman Iii

Faculty Publications

My objective here is threefold: (1) to explain these ethical rules and demonstrate how each is in conflict with longstanding principles of federal criminal law; (2) to explain why these rules are illegitimate, both as rules of ethics and as rules of positive law; and (3) to offer some observations on how the dispute over these rules can sharpen our thinking about the nature and proper limits of ethical rules governing lawyers.

Who Are The Parents Biotechnological Children?, Larry I. Palmer

Faculty Publications

We do not underestimate the difficulties of legislating on this subject. In addition to the inevitable confrontation with the ethical and moral issues involved, there is the question of the wisdom and effectiveness of regulating a matter so private, yet of such public interest. Legislative consideration of surrogacy may also provide the opportunity to begin to focus on the overall implications of the new reproductive biotechnology- in vitro fertilization, preservation of sperms and eggs, embryo implantation and the like. The problem is how to enjoy the benefits of the technology-especially for infertile couples-while minimizing the risk of abuse. The problem …

Book Review Of Solutions To Ethical And Legal Problems In Social Research, Larry I. Palmer

Faculty Publications

No abstract provided.