Law Commons^™

A Study Of Tax Lawyers Discussing Duties, Michael Hatfield, Michelle Kwon

Articles

This Article reports the first qualitative empirical study of U.S. tax lawyers. We interviewed women lawyers who were tax planning specialists. Though this is the first such study of U.S. tax lawyers, this methodology has been used often to study the professional ethics of other tax practitioners around the world. We had three research questions that we sought to answer through dynamic conversations on topics such as the distinctions between good and bad tax plans and good and bad tax lawyers and also the joys and stresses of tax practice. Our first research question was as to the make-up of …

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …

Ethical Duties Of Class Counsel Also Representing Class Representatives, Nancy J. Moore

Faculty Scholarship

In their excellent article entitled May Class Counsel Also Represent Lead Plaintiffs?,¹ Professors Bruce Green and Andrew Kent explore a particular aspect of two broader questions I have also addressed: (1) who should regulate class action lawyers;² and (2) who will regulate class action lawyers?³ I, too, focused on lawyers' conflicts of interest; however, Professors Green and Kent focus even more specifically on conflicts arising from class counsel's simultaneous representation of both the class and individual clients who are serving or will serve as class representatives. Their concern is with three particular scenarios in which the class …

Critical Review Of The Use Of The Rorschach In European Courts, Igor Areh, Fanny Verkampt, Alfred Allan

Research outputs 2014 to 2021

In relation to the admissibility of evidence obtained using projective personality tests arose in F v. Bevándorlási és Állampolgársági Hivatam (2018). The Court of Justice of the European Union has held that an expert’s report can only be accepted if it is based on the international scientific community’s standards, but has refrained from stipulating what these standards are. It appears timely for European psychologists to decide what standards should be applied to determine whether or not a test is appropriate for psycholegal use. We propose standards and then apply them to the Rorschach because it was used in this case …

The Ethics Of Trump's Shadow Lawyers?, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

The barrage of over sixty failed lawsuits filed by lawyers representing former President Donald Trump and his allies seeking to overturn the 2020 presidential election brought forth numerous calls to sanction these lawyers. So far, Rule 11 and disciplinary sanctions have reached one of the most public of the pro-Trump lawyers, Rudolph Giuliani, as well as some of the lawyers who filed and put their names on the complaints initiating the frivolous cases. This Essay discusses the need to impose sanctions on the lawyers behind the scenes—who directed and coordinated the bogus cases—but so far have largely evaded accountability.The authors …

Organizational Conflicts Of Interest: Cautionary Tales, Jessica Tillipman

GW Law Faculty Publications & Other Works

A recent, high-profile investigation involving McKinsey & Company (McKinsey) and its contracts with the Food and Drug Administration (FDA) has reminded us that organizational conflicts of interest (OCIs) are an integrity issue that never should be written off as a check-the-box exercise during the procurement process. This incident highlighted the need to address critical gaps in this area of the law. This article appeared in the August 2022 issue of Contract Management magazine published by the National Contract Management Association. Used with permission.

Strange Bedfellows? Representative Democracy And Academic Engagement With The Defense Industry, Steven L. Schooner, Evan Matsuda

GW Law Faculty Publications & Other Works

This chapter concludes a book that grew out of 2015 a conference hosted by the University of Pennsylvania's Center for Ethics and the Rule of Law, which brought together defense industry leaders, academics, and lawyers to discuss ethical challenges to the defense industry. Authors from the academy, practitioners, and policy-makers offer perspectives and insights such that the collection spans a broad range of disciplines, from philosophy, economics, law, and political science, to the management of corporate compliance.

In addition to attempting (no doubt unsuccessfully) to tie many of the book's themes together, the chapter itself asserts that the academic community …

Canada's Integrity Regime: The Corporate Grim Reaper, Jessica Tillipman, Samantha Block

GW Law Faculty Publications & Other Works

In 2019, SNC-Lavalin made global headlines after it was revealed that the Canadian Prime Minister, Justin Trudeau, had interfered in the prosecution of the company for the bribery of Libyan officials. Although the scandal was primarily viewed as political, it also highlighted flaws in Canada’s Integrity Regime; specifically, the regime’s unworkable and draconian approach to debarment. This Article will address the pressing need in Canada to modify its debarment remedy and enact a system that more effectively protects the government’s interests. To illuminate the current issues facing Canada’s Integrity Regime, this Article will begin by examining Canada’s debarment system, outlining …

Mckinsey & Company’S Conduct And Conflicts At The Heart Of The Opioid Epidemic, Hearing Before The House Committee On Oversight And Reform, Jessica Tillipman

GW Law Faculty Publications & Other Works

On April 27, 2022, Jessica Tillipman, Assistant Dean for Government Procurement Law Studies at The George Washington University Law School testified before the House Committee on Oversight and Reform regarding McKinsey & Company's potential Organizational Conflict of Interest between its contracts with the Food & Drug Administration (FDA) and its commercial, opioid manufacturer clients. Her testimony addressed the longstanding need to update and clarify the current legal framework governing Organizational Conflicts of Interest (OCIs) in the Federal Acquisition Regulation (FAR) and the importance of government contractors maintaining strong internal ethics and compliance programs.

Using Ai To Reduce Performance Risk In U.S. Procurement, Jessica Tillipman

GW Law Faculty Publications & Other Works

In recent years, several U.S. government agencies have pioneered the use of artificial intelligence (AI) and other emerging technologies to improve the efficiency and accuracy of their "responsibility determinations" (reviews of, among other things, contractor representations and certifications, past performance history, civil and criminal settlements, exclusions (such as suspensions or debarments), and contract terminations). As federal agencies continue to think strategically about how to improve processes and reduce risk in their procurements, technology-driven solutions will play a critical role in this undertaking.

Trump, Lawyer Regulation, And The Institutional Double Bind, Benjamin H. Barton

Scholarly Works

Scandals, news stories, and court setbacks that would have devastated other, more traditional Presidents have seemingly only made Donald Trump’s bond with his supporters stronger. This creates a challenge when institutions try to punish anyone in Trump’s orbit. Taking action against Trump only encourages his supporters, while inaction may lessen the left’s faith in institutions and leave opponents of President Trump wondering why nothing is being done to curtail what they see as flagrant criminal contempt. This is a problem the author calls the “institutional double bind.” This Essay discusses whether there is any solution for these institutions stuck in …

Ethics, Safety, And Autonomous Vehicles, William H. Widen, Philip Koopma, Benjamin Kuipers, Marilyn Wolf

Articles

This roundtable explores the ethical and safety implications of the rapidly evolving technology of autonomous vehicles.

Law Library Blog (November 2021): Legal Beagle's Blog Archive, Roger Williams University School Oflaw

Law Library Newsletters/Blog

No abstract provided.

Addressing The Harms Of Pornography, Gillian Allison

Honors Theses

Within this paper I look at the existing philosophical work on pornography, from scholars like Catherine MacKinnon, Ronald Dworkin, and Rae Langton to show the current state of the pornography debate that I intend to enter by presenting my own argument about the morality of pornography. I argue that while pornography is harmful, these harms are best resolved through increased sexual education and the popularization and production of more inclusive pornography. The harms pornography causes are so great because pornography is where a lot of people learn about sex. Pornography was never designed to depict an average sexual experience. If …

The Promise And Limits Of Lawfulness: Inequality, Law, And The Techlash, Salomé Viljoen

Articles

In response to widespread skepticism about the recent rise of “tech ethics”, many critics have called for legal reform instead. In contrast with the “ethics response”, critics consider the “lawfulness response” more capable of disciplining the excesses of the technology industry. In fact, both are simultaneously vulnerable to industry capture and capable of advancing a more democratic egalitarian agenda for the information economy. Both ethics and law offer a terrain of contestation, rather than a predetermined set of commitments by which to achieve more democratic and egalitarian technological production. In advancing this argument, the essay focuses on two misunderstandings common …

What An Ethics Of Discourse And Recognition Can Contribute To A Critical Theory Of Refugee Claim Adjudication, David Ingram

Philosophy: Faculty Publications and Other Works

Thanks to Axel Honneth, recognition theory has become a prominent fixture of critical social theory. In recent years, he has deployed his recognition theory in diagnosing pathologies and injustices that afflict institutional practices. Some of these institutional practices revolve around specifically juridical institutions, such as human rights and democratic citizenship, that directly impact the lives of the most desperate migrants. Hence it is worthwhile asking what recognition theory can add to a critical theory of migration. In this paper, I argue that, although its contribution to a critical theory of migration is limited, it nonetheless carves out a unique body …

Inamori International Thesis Prize In Military Ethics 2019 | 2020 - Front Matter And Message From The Editors, Shannon E. French, Beth Trecasa

The International Journal of Ethical Leadership Special Volumes

The Inamori International Center for Ethics and Excellence awards an annual prize for the best thesis in military ethics to promote active involvement in the study and application of military ethics, including: Just War Theory; the Conduct of War; the Law of Armed Conflict (LOAC); International Humanitarian Law (IHL); and other related fields that include the study of human rights issues in the context of armed conflict.

In an effort to foster global discussion of pressing issues in military ethics and improve the accessibility of the field in languages other than English, the Inamori Center publishes the winning theses, in …

Just War Traditions And Revisions, Joseph Chapa

The International Journal of Ethical Leadership Special Volumes

No abstract provided.

Arguments For Banning Autonomous Weapon Systems: A Critique, Hunter Cantrell

The International Journal of Ethical Leadership Special Volumes

No abstract provided.

Empathy And Jus In Bello, Kevin Cutright

The International Journal of Ethical Leadership Special Volumes

No abstract provided.

Trust In And Ethical Design Of Carebots: The Case For Ethics Of Care, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

The paper has two main objectives: to examine the challenges arising from the use of carebots as well as to discuss how the design of carebots can deal with these challenges. First, it notes that the use of carebots to take care of the physical and mental health of the elderly, children and the disabled as well as to serve as assistive tools and social companions encounter a few main challenges. They relate to the extent of the care robots’ ability to care for humans, potential deception by robot morphology and communications, (over)reliance on or attachment to robots, and the …

The Politics And Ethics Of Immigration In A Commercial Republic, Kiara Palomares

Honors Program Theses and Projects

The quote on the Statue of Liberty reads: “Give me your tired, your poor, Your huddled masses yearning to breathe free, The retched refuse of your teeming shore, Send these, the homeless, tempest-tost to me. I lift my lamp beside the golden door!” These words are central to the mythology of America as a nation of immigrants and, to the extent that this myth is accurate, one would expect that after experiencing multiple waves of immigration the United States (US) would have developed a set of principles guiding how legislators think about and frame immigration policy. This would not be …

Digital Health Passes In The Age Of Covid-19: Are “Vaccine Passports” Lawful And Ethical?, Lawrence O. Gostin, I. Glenn Cohen, Jana Shaw

Georgetown Law Faculty Publications and Other Works

As COVID-19 vaccination rates in high-income countries increase, governments are proposing or implementing digital health passes (DHPs) (vaccine “passports” or “certificates”). Israel uses a “green pass” smartphone application permitting vaccinated individuals’ access to public venues (eg, gyms, hotels, entertainment). The European Union plans a “Digital Green Certificate” enabling free travel within the bloc (see eTable in the Supplement). New York is piloting an IBM “Excelsior Pass,” confirming vaccination or negative SARS-CoV-2 test status through confidential data transfers to fast-track business reopenings. This paper examines the benefits of DHPs, scientific challenges, and whether they are lawful and ethical.

The Internet Never Forgets: Student Journalists Meet The "Right To Be Forgotten", Emily R. Feek

WWU Honors College Senior Projects

This study examines how journalists at college publications handle unpublishing requests in the context of United States media law, the European Union's Right to be Forgotten and journalistic ethics. Interviews with student editors at Washington state public universities' student newspapers were used to examine how student publications address requests for information or entire articles to be unpublished and what those editors' attitudes toward unpublishing are. This research reveals that this subset of student journalists tended to favor alternatives to unpublishing, although articles could be removed ethically in some select cases, and a lack of consistent guidelines regarding how to manage …

The Ethics Of Research That May Disadvantage Others, Christopher Robertson

Faculty Scholarship

In prospective interventional research, a treatment may provide an advantage for the recipient over other humans not receiving it. If the intervention proves successful, the treated are better able to compete for a scarce ventilator, a class grade, or a litigation outcome, potentially risking the deaths, jobs, or incomes of non-treated persons. The concerns for “bystanders” have typically focused on direct harms (e.g., infecting them with a virus), unlike the mere competition for rivalrous goods at issue here.

After broadly scoping this problem, analysis reveals several reasons that such research is typically permissible, notwithstanding the potential setbacks to the interests …

The Rise Of Law And The Fall Of Circular 230: Tax Lawyer Professional Standards, 1985-2015, Michael Hatfield

Articles

This third article focuses on the two issues that dominated discussions of professional responsibility standards for tax lawyers in the 1985-2015 period: return position standards and tax shelter opinions. It opens with consideration of the ABA’s 1965 opinion providing “reasonable basis” as the standard for undisclosed return positions, and then traces the response to that opinion as the response prods the development of the 1985 replacement with its “realistic possibility of success” standard. The Article documents the extensive interaction between Congress, the Treasury Department, and the tax bar over the next 30 years during which penalties are studied and revised …

Ad Tech & The Future Of Legal Ethics, Seth Katsuya Endo

UF Law Faculty Publications

Privacy scholars have extensively studied online behavioral advertising, which uses Big Data to target individuals based on their characteristics and behaviors. This literature identifies several new risks presented by online behavioral advertising and theorizes about how consumer protection law should respond. A new wave of this scholarship contemplates applying fiduciary duties to information-collecting entities like Facebook and Google.

Meanwhile, lawyers—quintessential fiduciaries—already use online behavioral advertising to find clients. For example, a medical malpractice firm directs its advertising to Facebook users who are near nursing homes with bad reviews. And, in 2020, New York became the first jurisdiction to approve lawyers’ …

Law Talk In A Brief Advice Clinic, Linda F. Smith

Utah Law Faculty Scholarship

Over three decades ago, Sarat and Felstiner published a ground-breaking ethnographic study of divorce client-lawyer conversations. They concluded that lawyers portrayed "a chaotic 'anti-system' in which [clients] cannot rely on the technical proficiency, or good faith, of judges and rival lawyers" but need to rely on their own lawyers' insider status to achieve reasonable outcomes.1 Although lawyers initially described the law and procedure to their clients, they rarely referenced that rational description when explaining what had occurred or would occur in their clients' cases. This law talk may have gradually and ultimately persuaded the clients to reach reasonable settlements, but …

Ethical Duty To Investigate Your Client?, Peter A. Joy

Scholarship@WashULaw

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such …

Exploring The Implications Of Artificial Intelligence, Kristin N. Johnson, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Emerging technologies promise to play a transformative role in our society, enabling driverless cars, enhanced accuracy and efficiency in disease mapping, greater and less expensive access to certain consumer services, including consumer financial services. Discussions regarding the role of emerging technologies increasingly center on the development and integration of artificial intelligence technologies or AI-an assemblage of technologies that rely on a variety of computational techniques. This Essay offers a modest primer outlining a general understanding of the contours and contributions of Al, as well as introducing the articulated benefits and limits

of these technologies.

This Essay examines the increasingly pervasive …