Law Commons^™

The St. Thomas Effect: Law School Mission And The Formation Of Professional Identity, Jennifer Wright

Jennifer Wright

The legal profession has long been criticized for declining standards of professionalism. Recent studies have pointed to the crucial role of legal education in forming the professional identity of lawyers. Law schools must take seriously their duty to intentionally and thoughtfully shape their students’ sense of what it means to be a lawyer and of how their professional identities will align and coexist with their other personal and ethical commitments. In this article, I examine a case study of one law school, the University of St. Thomas School of Law, whose self-proclaimed raison d’etre is to produce a “different kind …

Modern Disparities In Legal Education: Emancipation From Racial Neutrality, David Mears

David Mears

Abstract

Wealth, leadership and political power within any democratic society requires the highest caliber of a quality legal education. The Black experience is not necessarily a unique one within legal education but rather an excellent example of either poor to substandard quality disseminated unequally among racial and socioeconomic stereotypes based upon expected outcomes of probable success or failure. It is often said, “Speak and so it will happen” – many within the halls of academia work hard to openly predict failure yet seemingly do very little to foster success internally within the academic procedures and processes based on the customer …

A Critique Of The Aals Hiring Process, Allen R. Kamp

Allen R. Kamp

The article citiques the process of hiring professors in legal academia.

Do You Want To Be An Attorney Or A Mother? Arguing For A Feminist Solution To The Problem Of Double Binds In Employment And Family Responsibilities Discrimination, Heather Bennett Stanford

Heather P Bennett

This article is a research paper analyzing and proffering solutions to family responsibilities discrimination in the workplace. The article centers around a case filed in the United States District Court for the Western District of Pennsylvania. This case was filed by a female partner at the law firm Dickie, McCamey & Chilcote claiming discrimination based on family responsibilities. I chose this topic because I feel that it is an increasingly important and emerging area of employment discrimination law. This article introduces the background of the case and analyzes possible outcomes in light of caselaw involving employment discrimination in various contexts. …

The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial …

Pro Bono Publico As A Conscience Good, Deborah A. Schmedemann

Deborah Schmedemann

Pro bono work performed by American lawyers serves a critical role in the American civil justice system. This paper seeks to explain pro bono through the lens of social science research into volunteering, in particular the economic concept of a conscience good. The paper presents the results of an empirical study involving over 1,100 law students and lawyers. The results include data on lawyers’ motivations to perform pro bono, the impact of various pro bono rules and invitations to perform pro bono, the satisfactions of pro bono work, emotions triggered by pro bono work and pro bono clients, and the …

Pro Bono Publico As A Conscience Good, Deborah A. Schmedemann

Deborah Schmedemann

Pro bono work performed by American lawyers serves a critical role in the American civil justice system. This paper seeks to explain pro bono through the lens of social science research into volunteering, in particular the economic concept of a conscience good. The paper presents the results of an empirical study involving over 1,100 law students and lawyers. The results include data on lawyers’ motivations to perform pro bono, the impact of various pro bono rules and invitations to perform pro bono, the satisfactions of pro bono work, emotions triggered by pro bono work and pro bono clients, and the …

The Meaning, Measure, And Misuse Of Standards Of Review, Amanda J. Peters

Amanda J Peters

Standards of review are critical to appellate review because they set limitations upon the appellate court's review process. In doing so, standards of review balance judicial authority, make judicial review more efficient, standardize the review process, and give notice to parties who wish to appeal their cases. However, these policies and their effects are diminished when appellate judges misuse or ignore standards of review.

This article examines the theories that led to the creation of standards of review and identifies four ways that appellate courts misuse standards of review. It analyzes over 8,000 cases from Texas and California, along with …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

The Global Advocate: From Ethical Anarchy To Discernable Duties, Catherine A. Rogers

Catherine A Rogers

This Article identifies the emergence of "global advocates" as an important force on the world legal stage. By definition and design, these global advocates operate in a professional “space” that is distinct from the jurisdiction in which they are licensed and stretches beyond the jurisdictional boundaries of any particular tribunal. They maneuver in the nooks and crannies, the overlap and the inconsistencies between legal systems. Legal arbitrage is a core feature of their daily practice, and perhaps one of their most essential professional skills. This detachment from their licensing jurisdiction raises fundamental questions about the origin and object of their …

Curriculum Reform In Context, 1870-2008: Understanding And Overcoming The Limitations Of Contemporary Legal Education, William A. Langer

William A Langer

Curriculum Reform in Context, 1870-2008: Understanding and Overcoming the Limitations of Contemporary Legal Education

William Langer

In 2006, the law schools at Harvard and Stanford announced plans to implement innovative reforms to their traditional legal curricula. While the two law schools’ reform programs are quite different from one another, they both proceed on the premise that legal education has not kept pace with the changes that have taken place in the law, the legal profession, and the global economy over the last several decades, and that the traditional form of legal education, centered around the “case method,” has long been …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

The New Boys: Women With Disabilities And The Legal Profession, Carrie G. Basas

Carrie G Basas

This essay fuses the fields of law, feminist theory, and cultural studies to examine the status of women attorneys with disabilities. It is the first study of its kind in the United States. The author conducted an empirical, qualitative, and ethnographic study of women attorneys with disabilities in the United States. Thirty-eight attorneys participated and their narratives form the basis for critical analysis of disability animus and discrimination in the legal profession. The results show an alarming trend toward disabled women attorneys self-accommodating in the workplace, rather than enforcing their employment rights under the Americans with Disabilities Act. Relying on …

Mr. Justice Blackstone: The Commentator On Common Pleas, Emily Kadens

EMILY KADENS

Although William Blackstone served longer as a judge on the English Court of Common Pleas than he had as the inaugural Vinerian Professor of English law at Oxford, his post-professorial legal life has been almost entirely ignored by scholars. Only one article, written almost fifty years ago and focused narrowly on legal doctrine, has offered any insight into Blackstone as a judge. And yet the subject is of great interest for two reasons. First, Blackstone was the first law professor to become a judge on an English common law court. Second, his judicial opinions provide an alternative, and arguably a …

Judicial Reporting Of Lawyer Misconduct, Arthur F. Greenbaum

Arthur F Greenbaum

It has long been recognized that judges can and should play a central role in the lawyer disciplinary process by reporting substantial lawyer misconduct they observe to disciplinary authorities. Despite the nearly 20-year existence of a mandatory reporting rule in such instances, the conventional wisdom suggests that the rule often is not followed. While the 2007 revision of the ABA Model Code of Judicial Conduct provided a golden opportunity to address this problem, the process resulted in little more than a hortatory reaffirmation of the basic principle. There is a better path.

In this essay, I thoroughly analyze the costs …

Predicting Law School Success: A Study Of Goal Orientations, Academic Achievement And The Declining Self-Efficacy Of Our Law Students, Leah M. Christensen

Leah M Christensen

This study asked 157 law students to respond to a survey about their learning goals and motivations for learning in law school. The student responses were correlated to different academic variables, including class rank, LSAT scores, undergraduate GPA. Further, the study explored whether any relationships existed between goal orientations (mastery or performance) and law school success (class rank). The results were illuminating: despite the performance-based curriculum of law school, the most successful students were mastery oriented learners. In contrast, there was no statistical correlation between performance-oriented learning and law school success. Further, the LSAT score was the weakest predictor of …

Judicial Independence And Nonpartisan Elections, Brandice Canes-Wrone, Tom S. Clark

Brandice Canes-Wrone

This Article argues against the conventional wisdom about nonpartisan judicial elections. In contrast to the claims of policy advocates and the scholarly literature, we suggest that nonpartisan elections do not necessarily encourage greater judicial independence than partisan elections do. Instead, nonpartisan elections create the incentive for judges to cater to public opinion, and this pressure will be particularly strong for the types of issues that attract attention from interest groups, the media, and voters. After developing this argument, we support it with new empirical evidence. Specifically, we examine patterns of judicial decisions on abortion-related cases heard by state courts of …

Anton Chekhov’S “Home” And “A Visit To Friends”: The Dichotomy Between The Personal And The Professional, Or The Lawyer Subjectified And Objectified, James Downing Redwood

James Downing Redwood

The busy life of the practicing attorney is proverbial and leaves but little room and time for the demands of home. Further, it is equally well known that the lawyer’s training emphasizes the objective over the subjective, the rational and logical over the emotional and personal. This article analyzes two short stories by the renowned Russian author Anton Chekhov, both of which give the reader a practicing lawyer attempting to reconcile the demands of the office with those of the home. In one story the attorney harmonizes the two by becoming more personal and “subjectified,” while in the other work …

Gender And The Chinese Legal Profession In Historical Perspective: From Heaven And Earth To Rule Of Woman?, Mary Szto

Mary Szto

This article first discusses the current phenomenon of women judges and male lawyers in China. Many women have joined the ranks of the Chinese judiciary because this is considered a stable job conducive to caring for one’s family, as opposed to being a lawyer, which requires business travel and heavy client entertaining. I then trace this phenomenon to ancient views of Heaven, earth, gender and law in China. In this yin/yang framework, men had primary responsibility for providing sustenance for both this life and the life to come and women were relegated to the “inner chambers”. Also, law was secondary …

“Once Upon A Time, In A Land Far, Far Away . . .” Lawyers And Clients Telling Stories About Ethics (And Everything Else), Carolyn Grose

carolyn grose

ABSTRACT

Framed by an analysis of two particular ethical rules and their application to specific situations, this piece uses the metaphor of storytelling to explore the lawyer’s role as an effective and ethical client representative. Drawing from the experiences of two sets of clients and their lawyers, the piece proposes an approach to ethical regulation (as one component of the lawyer-client relationship) that requires the lawyer to engage in a deeply contextual analysis of the specific and particular ethical conflicts presented to him in any particular case; and work with his client to determine how to resolve those conflicts.

The …

Anton Chekhov's "Home" And "A Visit To Friends": The Dichotomy Between The Personal And The Professional, Or The Lawyer Subjectified And Objectified, James Redwood

James Downing Redwood

The busy life of the practicing attorney is proverbial and leaves but little room and time for the demands of home. Further, it is equally well known that the lawyer’s training emphasizes the objective over the subjective, the rational and logical over the emotional and personal. This article analyzes two short stories by the renowned Russian author Anton Chekhov, both of which give the reader a practicing lawyer attempting to reconcile the demands of the office with those of the home. In one story the attorney harmonizes the two by becoming more personal and “subjectified,” while in the other work …

The Lawyer’S Duty To Inform His Client Of His Own Malpractice, Benjamin P. Cooper

Benjamin P Cooper

Every big-firm litigation partner has received the call from his colleague in the corporate department: “The big deal that I was working on fell apart, and now the client has been sued. Can you handle the litigation?” While this turn of events is not good news for the client, it is not necessarily bad news for the law firm, which may now be looking forward to lengthy litigation and big fees. Because of that, the litigation partner’s response is usually the same – he says, “yes,” and simply assumes that his partner was not the cause of the litigation or …

Anton Chekhov's "Home" And "A Visit To Friends": The Dichotomy Between The Personal And The Professional, Or The Lawyer Subjectified And Objectified, James Downing Redwood

James Downing Redwood

The busy life of the practicing attorney is proverbial and leaves but little room and time for the demands of home. Further, it is equally well known that the lawyer’s training emphasizes the objective over the subjective, the rational and logical over the emotional and personal. This article analyzes two short stories by the renowned Russian author Anton Chekhov, both of which give the reader a practicing lawyer attempting to reconcile the demands of the office with those of the home. In one story the attorney harmonizes the two by becoming more personal and “subjectified,” while in the other work …

Reconceptualizing Competence: An Appeal, Mae C. Quinn

Mae C. Quinn

This article builds on contemporary critiques of the justice system’s treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed -- the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach to defendant capacity not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of …

Government Lawyer As Cause Lawyer: A Study Of Three High Profile Government Lawsuits, Steve Berenson

Steve Berenson

Over the past decade a broad and deep literature has developed mapping the contours of the work of cause lawyers – those lawyers who attempt to use the law to achieve social change objectives. However, very little of that literature addresses the work of government lawyers. At first blush, this makes perfect sense. After all, when they defend government officials charged with wrongdoing, or statutes and regulations charged with illegality, government lawyers are the ultimate representatives of the status quo. However, in other contexts, government lawyers may initiate cases that have social change objectives. Indeed, some of these cases bear …

Saiban In Seido: Lost In Translation?, Douglas G. Levin

Douglas G Levin

Japan plans to reintroduce a jury system in 2009. While most law review articles to date have focussed on the particular procedures of the proposed system as well as the implications of introducing a jury system in a stereotypically passive culture, this article proposes that the source of power underlying the proposed system will ultimately determine its fate. In short, for the proposed lay assessor system to achieve its goal of promoting democracy, its power must derive from the people rather than the government. Furthermore, Japan must consider fundamental changes to its criminal justice system so that its lay assessor …

Clearly, Using Intensifiers Is Very Bad--Or Is It?, Lance N. Long, William F. Chistensen

Lance N. Long

Although scholars have generally found that overusing intensifiers (words such as “clearly,” “obviously,” and “very”) negatively affects the persuasiveness or credibility of a legal argument, no one has studied actual appellate briefs to determine whether there is a relationship between intensifier use and the outcome of an appeal. This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an “offending” party. But--and this was an unexpected result--if an appellate opinion uses a high rate …

"And I Would Have Gotten Away With It Too, If It Hadn't Been For You Meddling Kids And Your Dog," Uh, I Mean Legal Ethics Rules: A Proposal For Rules Requiring Disclosure Of Attorney "Ghostwriting" Of Pro Se Litigants' Court Documents And Allowing Limited Appearances For Such Attorneys, Michael W. Loudenslager

Michael W. Loudenslager

More and more pro se litigants are making their way to the courthouse. Pro se litigants have become common especially in state housing and family law courts and in federal bankruptcy court. In response, a growing number of attorneys have started providing unbundled or limited scope legal services to these litigants. This involves a client hiring an attorney to perform a discrete task in a lawsuit and nothing else. One particular form of discrete task legal services involves attorney “ghostwriting.” In such arrangements, an attorney drafts pleadings or other court documents for pro se litigants. However, the legal assistance that …

Not For Love Or Money: Appointing A Public Defender To Litigate A Claim Of Ineffective Assistance Involving Another Public Defender, Christopher M. Johnson

Christopher M Johnson

This article explores whether public defenders can litigate claims of ineffective assistance of counsel involving an affiliated public defender as the claim’s target. Courts in different states have reached different conclusions on that question. Some courts treat public defenders as sufficiently different from private practitioners as to justify a different conflict of interest rule, and allow such representation. Other courts disagree, and bar public defenders from litigating such a claim to the same extent that they would bar a private practitioner litigating a claim involving a partner as the claim’s target. The dispute raises important questions about the nature of …

The Law Firm Caste System, Tiffani N. Darden

Tiffani N. Darden

Diversity eludes the most prestigious legal employers—the federal judiciary, academia, and elite law firms—despite enlightened scholarship diagnosing the quandaries of workplace equity in professional settings. While recruitment efforts stream attorneys of color into the lower ranks of corporate law firms, management and the profession still grapple with retention challenges. How can the legal profession, including law firms, resolve this problem? In addressing this question, I examine the uncharted intersection between two bodies of legal scholarship: workplace equity theory and the institutional analyses of law firm diversity. The primary data collection method for this study consists of personal interviews with diversity …