Law Commons^™

Students As Teachers, Teachers As Learners, Derrick Bell, Erin Edmonds

Michigan Law Review

Judge Edwards divides his analysis of the cause of the crisis in ethical lawyering into an overview and three parts. The overview and first two parts deal mainly with the role of law schools and legal curriculum in what he views as the deterioration of responsible, capable practitioners. This article takes issue with some of the assumptions, analyses, and conclusions those sections contain. The third part of Edwards' article analyzes the role of law firms in causing that same deterioration. This article agrees with and will elaborate upon that part of Edwards' treatment.

We approach Judge Edwards' article, we hope, …

The Growth Of Interdisciplinary Research And The Industrial Structure Of The Production Of Legal Ideas: A Reply To Judge Edwards, George L. Priest

Michigan Law Review

This brief response will attempt to repair these various deficiencies, though only in part because of the difficulty of the subject. It will try to explain more fully the rise of interdisciplinary legal research and will sketch the broader structure of the production and dissemination of new ideas about law and the legal system. The relationship between legal education and legal practice implicates an understanding of the "market" for legal ideas. To describe ideas as the subject of a "market," of course, has become conventional. In my view, however, the market metaphor most typically distorts our understanding of the issue, …

Plus Ҫa Change, Paul Brest

Michigan Law Review

Harry Edwards and I both finished law school in 1965, and his article presents an occasion to consider how much the legal academy has changed during the intervening years. Animating Judge Edwards' complaints about the contemporary legal academy is a nostalgia for happier days. His images are of decline - of a growing disjunction between the academy and practice, of law schools' abandoning their proper missions, of their movement toward pure theory. My own view is quite different. Except for some noteworthy demographic transformations and a healthy broadening of the academic agenda, legal education has changed little during these almost …

A Response From The Visitor From Another Planet, J. Cunyon Gordon

Michigan Law Review

In order to admit, as I do, that the related planets of practice and academia are conjoined, one has to realize, as I have, that the legacy of the heavily doctrinal education Edwards wants to preserve may be precisely the lawyers he upbraids - lawyers who generally do not live, work, and behave ethically (with fairness, compassion, and creativity) in a complex, heterogeneous society. This recognition in turn compels the conclusion I reach that the outsiders - with their challenges to the status quo's values, their upstart theories and innovative pedagogies, and even their Star Trek-and-the-law scholarship - may help …

Mad Midwifery: Bringing Theory, Doctrine, And Practice To Life, Barbara Bennett Woodhouse

Michigan Law Review

I share Judge Edwards' concern about the health of legal education and about lawyers as a force in society. I differ, however, in defining the sickness and prescribing the cure, at least when it comes to teaching. In my view, we need to integrate, not to dichotomize and polarize further, the practical and the impractical, the doctrinal and the theoretical. His critique, and my intuitive response to it, challenged me to examine and articulate where we disagree, based on what I have learned in my five years in the classroom and what it is I hope to accomplish in my …

Clerks In The Maze, Pierre Schlag

Michigan Law Review

It must be very difficult to be a judge - particularly an appellate judge. Not only must appellate judges reconcile often incommensurable visions of what law is, what it commands, or what it strives to achieve, but judges must do this largely alone. What little help they have in terms of actual human contact, apart from their clerks, typically takes the form of two or more advocates whose entire raison d'être is to persuade, coax, and manipulate the judge into reaching a predetermined outcome - one which often instantiates or exemplifies only the most tenuous positive connection to the rhetoric …

Lawyers, Scholars, And The "Middle Ground", Robert W. Gordon

Michigan Law Review

The Judge seems to be arguing that both teachers and firm lawyers have been seduced from their real vocation by the fatal attraction of neighboring cultures: the practitioners by the commercial culture of their business clients, the academics by the disciplinary paradigms and prestige of theory in the rest of the university. The "deserted middle ground" is the ground of professional practice - practical, yet also public-minded. Perhaps without straining his thesis too far we could ascribe to Judge Edwards a "republican" view of the legal profession, in which legal scholars, practitioners, judges, legislators, and administrators - despite their separate …

The Disjunction Between Judge Edwards And Professor Priest, Louis H. Pollak

Michigan Law Review

With characteristic vigor, Judge Harry Edwards, in his essay The Growing Disjunction Between Legal Education and the Legal Profession, has censured the law schools and, secondarily, the bar, for what he sees as profoundly disturbing trends pulling academics and practitioners farther and farther apart. Judge Edwards' censure is not proffered off the cuff. He has carefully polled his former law clerks on their perceptions of their law school years and of their postclerkship professional experiences - whether in private practice, in government, or in teaching. In the text and footnotes of his essay, Judge Edwards quotes his law clerks' …

Pro Bono Legal Work: For The Good Of Not Only The Public, But Also The Lawyer And The Legal Profession, Nadine Strossen

Michigan Law Review

I agree with Judge Edwards that "the lawyer has an ethical obligation to practice public interest law - to represent some poor clients; to advance some causes that he or she believes to be just." I also concur in Judge Edwards' opinion that "[a] person who deploys his or her doctrinal skill without concern for the public interest is merely a good legal technician - not a good lawyer."

Rather than further develop Judge Edwards' theme that lawyers have a professional responsibility to do pro bono work, I will offer another rationale for such work, grounded in professional and individual …

Stewardship, Donald B. Ayer

Michigan Law Review

While I agree with much that Judge Edwards has proposed, I thus submit that his formulations of the problem are partial - a bit like those of the blind men examining different parts of the elephant. The law's current unhappiness is only partly described as that of law schools and practicing lawyers going in different directions, of law practice becoming too commercial, or of law schools failing to serve the needs of the practicing lawyers and judges with practical teaching and scholarship. All of these observations, while correct as far as they go, miss the root of the problem, which …

The Mind In The Major American Law School, Lee C. Bollinger

Michigan Law Review

Legal scholarship is significantly, even qualitatively, different from what it was some two or three decades ago. As with any major change in intellectual thought, this one is composed of several strands. The inclusion in the legal academic community of women and minorities has produced, not surprisingly, a distinctive and at times quite critical body of thought and writing. The emergence of the school of thought known as critical legal studies has renewed and extended the legal realist critique of law of the first half of the century. But more than anything else it is the interdisciplinary movement in legal …

Fraudulent Concealment, Self-Concealing Conspiracies, And The Clayton Act, Richard F. Schwed

Michigan Law Review

This Note argues that courts should apply a self-concealment standard to section 4B of the Clayton Act rather than require a showing of additional affirmative acts. Part I examines the history of the fraudulent concealment doctrine and its application to antitrust cases. It identifies three different standards used by courts to satisfy the concealment element and finds that courts apply the doctrine inconsistently. Part II analyzes the relationship between the fraudulent concealment doctrine and the self-concealment standard in antitrust cases by examining the judicial development of the doctrine and Congress' intent in enacting section 4B. Part II concludes that the …

The Deprofessionalization Of Legal Teaching And Scholarship, Richard A. Posner

Michigan Law Review

The editors have asked me to comment on Judge Edwards' double-barreled blast at legal education and the practice of law. This I am happy to do. It is an important article, stating with refreshing bluntness concerns that are widely felt but have never I think been so forcefully, so arrestingly expressed. Nevertheless I have deep disagreements with it.

Judge Edwards' Indictment Of "Impractical" Scholars: The Need For A Bill Of Particulars, Sanford Levinson

Michigan Law Review

I can summarize my response as follows: Although Judge Edwards' article certainly seems to be leveling a heartfelt indictment, it lacks a sufficiently precise bill of particulars to know exactly whom he has accused of doing what. Nor does one know exactly what penalty Judge Edwards would exact from the miscreants. Unless he supplies such a bill, his indictment should be dismissed, though, presumably, without prejudice to its reinstatement should he wish to do the hard work of supplying evidence for the charges he set out.

Commentary On Judge Edwards' "Growing Disjunction Between Legal Education And The Legal Profession", James L. Oakes

Michigan Law Review

Perhaps this little piece should be entitled Grace Notes rather than Commentary because I agree with so much of what Judge Edwards had to say in the Michigan Law Review. When I first read his piece, I have to say I was quite skeptical of his methodology, namely, running a survey past a group of former law clerks who, by virtue of their own super achievement, primarily in so-called elite law schools, quite easily could have ethereal points of view. But in typical Edwardsian fashion, the judge made appropriate disclaimers, and the clerks' comments seemed to me, for the most …

Continuing Criminal Enterprise, Conspiracy, And The Multiple Punishment Doctrine, Kenneth G. Schuler

Michigan Law Review

This Note argues that the Multiple Punishment Doctrine prohibits the imposition of concurrent convictions and sentences upon criminal defendants found guilty of engaging in a CCE and conspiring to violate narcotics laws. Part I surveys the values underlying the Multiple Punishment Doctrine and traces the evolution of the Supreme Court's application of the doctrine to modern criminal law. Part II examines the various methods employed by the circuit courts of appeals to deal with simultaneous convictions and sentences for CCE and conspiracy. Part III reviews the test, identified in Part I, that the Supreme Court has implicitly utilized to analyze …

Foreword: The Many Contexts Of Welfare Reform, Jeffrey S. Lehman

University of Michigan Journal of Law Reform

To nourish the ongoing debate, the editors of the University of Michigan Journal of Law Reform have drawn together contributions from four law professors who have substantial expertise concerning the American welfare state. All of the Articles that compose this Symposium are animated by a desire to broaden our frame of reference for evaluating welfare reform. I believe that their shared project is important. Efforts to change AFDC will send ripples through the multiple legal structures that buoy our public systems of income support and wealth redistribution.

Disentitling The Poor: Waivers And Welfare "Reform", Susan Bennett, Kathleen A. Sullivan

University of Michigan Journal of Law Reform

This Article examines the purposes underlying the statutory grant of authority to Health and Human Services (HHS) to exempt states from the requirements of the statute, the important role that the Social Security Act has played as a source of rights for welfare recipients, the current wave of exemptions granted by HHS, and the lack of standards for review of state waiver proposals. Finally, this Article recommends the development of procedures and standards for review by HHS and urges that adherence to the core values of the Aid to Families with Dependent Children (AFDC) program is essential in evaluating the …

The Bar In America: The Role Of Elitism In A Liberal Democracy, Philip S. Stamatakos

University of Michigan Journal of Law Reform

Part I of this Note argues that liberal democracy, the free market, and science have contributed to the increasing atomization of American society. When each person and her views are glorified, universal standards of good become undermined, values become relative, and a sense of community becomes evanescent. Part II argues that individualism is incapable of accounting for the commonweal and therefore is inherently amoral because morality is concerned largely with determining when an individual's will should be subservient to the will of others. Part III considers the nature of elitism and equality and attributes the demise of elitist institutions in …

Reforming Welfare Through Social Security, Stephen D. Sugarman

University of Michigan Journal of Law Reform

In this Article, I first want to illustrate the connection between Social Security and AFDC-to explain the Social Security program and to demonstrate how it contributes to the welfare problem. More importantly, I then want to offer a reform proposal that builds on Social Security as a way to begin to eliminate AFDC and the current welfare problem. Simply put, I propose that Social Security should provide benefits to children with absent parents on the same basic terms on which it now provides benefits to children with deceased, disabled, or retired parents.

The Income Tax Treatment Of Social Welfare Benefits, Jonathan Barry Forman

University of Michigan Journal of Law Reform

Part I of this Article describes the major social welfare programs in the United States. Part II outlines the basic structure of the federal income tax and describes how social welfare benefits are treated by the income tax system. Finally, Part III surveys some recent proposals to tax particular social welfare benefits and considers the arguments for and against taxing such benefits. The Article concludes that the need for new revenue sources will push the federal government to reconsider the tax treatment of social welfare benefits.

The Tension Between Rules And Discretion In Family Law: A Report And Reflection, Carl E. Schneider

Articles

The history of law is many things. But one of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law. It is probably impossible to practice family law without wrestling with the imponderable choice between rules and discretion. Consider, for example, how many areas of family law are now being fought over in-just those terms. For decades we have lived with an abundantly discretionary way of resolving …

Legitimating Death, Louis D. Bilionis

Michigan Law Review

This article arrives at the surprising conclusion that a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology with firm roots in the traditions of constitutional adjudication.

To reach that conclusion, it is helpful first to have some sense of what the Supreme Court has been doing in the death penalty area lately. Part I thus presents a topical review of the Court's recent work, identifying the themes that now dominate, pointing out the concerns those themes raise, and asking whether any sense can be …

The Fantastic Wisconsylvania Zero-Bureaucratic-Cost School Of Bankruptcy Theory: A Comment, James W. Bowers

Michigan Law Review

In two recently published articles, Wisconsin Law Professor Lynn LoPucki and Pennsylvania Law Professor Elizabeth Warren, nearly simultaneously, fired the latest shots in one of academia's hottest ongoing debates: whether any good reason for having bankruptcy law exists. Justice Holmes once opined that the future belonged to the lawyer skilled in statistics and economics. LoPucki and Warren apparently agree about statistics but argue that, in a world with positive transaction costs, economic theory has little to contribute to our understanding about the justifications for bankruptcy law.

I write to highlight what one might easily overlook in LoPucki's and Warren's pieces. …

Of Citizen Suits And Citizen Sunstein, Harold J. Krent, Ethan G. Shenkman

Michigan Law Review

After briefly summarizing Lujan and addressing Sunstein's critique, we explore the concept of accountability underlying the creation of a single executive in Article II. We then apply our theory of the unitary executive to several examples of broad grants of statutory standing, concluding that Congress can confer standing on private citizens only if it specifically articulates and individuates the interests whose violation gives rise to a cognizable case. Although we agree with Sunstein's view that broad grants of statutory standing do not necessarily trench upon constitutional values, we ultimately side with Justice Scalia in concluding that universal citizen standing, as …

Whose Genes Are These Anyway?: Familial Conflicts Over Access To Genetic Information, Sonia M. Suter

Michigan Law Review

This Note argues first that courts and legislatures should follow a presumption against mandating disclosure of a person's genetic information to third parties. Second, genetic testing for the benefit of a third party should not, and constitutionally cannot, be compelled. Part I presents an overview of genetics and discusses the special legal and ethical issues genetic testing poses. Part II examines the issue of nonconsensual disclosure to family members, who could potentially use the information from tests that have already been performed. This Part concludes that there should be a presumption against disclosure. Part III examines a related, but different, …

The Ethics Of Criminal Defense, William H. Simon

Michigan Law Review

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

Are Criminal Defenders Different?, David Luban

Michigan Law Review

No one has done more to expose the jurisprudential incoherence of this view of legal practice than William Simon. In his 1978 article, The Ideology of Advocacy, Simon demonstrated a series of internal contradictions in the most promising attempts to justify the ideology of advocacy. Subsequently, in Ethical Discretion in Lawyering, Simon elaborated an alternative view according to which lawyers must exercise independent judgment in both their choice of clients and their choice of means in pursuing client ends.

In Simon's view, those who carve out the criminal defense exception have been taken in by what he calls …

Reply: Further Reflections On Libertarian Criminal Defense, William H. Simon

Michigan Law Review

Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore especially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal defense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering.

Understanding Mixed Motives Claims Under The Civil Rights Act Of 1991: An Analysis Of Intentional Discrimination Claims Based On Sex-Stereotyped Interview Questions, Heather K. Gerken

Michigan Law Review

This Note analyzes the Civil Rights Act of 1991 and relevant case law to determine whether posing sex-stereotyped interview questions is actionable conduct under Title VII. It questions whether proof of discrimination during a phase in the hiring process, specifically during the interview stage, supports a Title VII claim without other independent evidence that the hiring decision was discriminatory. Part I explains that the circuit courts have envisioned the impact of discrimination during the hiring process differently and, as a result, are divided in determining whether sex-stereotyped interview questions are actionable under Title VII. Part II examines the legislative history …