Law Commons^™

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 …

"Old And Making Hay:" The Results Of The Pro Bono Institute Survey On The Viability Of A "Second Acts" Program To Transition Attorneys To Retirement Through Pro Bono Work, Kenneth G. Dau-Schmidt

Kenneth G. Dau-Schmidt

In his 1998 Fairchild Lecture, Professor Marc Galanter proposed the idea that senior attorneys should be encouraged to undertake “a second ‘public service’ career” as a way of transitioning to retirement. The logic for encouraging such “Second Acts” in lawyers’ careers is compelling. As Professor Galanter has demonstrated, in the coming years, there will be record numbers of attorneys navigating the transition to retirement as the “Baby Boomers” reach their golden years. This substantial body of highly skilled lawyers could have a significant impact on fulfilling unmet needs for legal representation. If even 5% of the practicing attorneys over sixty-five …

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 …

Education For Judicial Aspirants, Keith Fisher

Keith R. Fisher

Introductory judicial education (IJE) is an avenue for improving both appointive and elective systems of judicial selection. The impetus for considering this topic can be traced back to a lingering unease with judicial selection and the ongoing (though now somewhat stagnant) debate over merit selection. Moreover, changes in the nature of law practice and the judicial role over the past several decades have rendered the gap between the two activities increasingly large. IJE is an effort to maximize the chances that judicial selection, by any process, will result in a judiciary composed of competent individuals who are not only philosophically …

The First Amendment And The Legal Profession: Is Silence Golden?, Jan L. Jacobowitz Ms.

Jan L Jacobowitz

No abstract provided.

The First Amendment And The Legal Profession: Is Silence Golden?, Jan L. Jacobowitz Ms.

Jan L Jacobowitz

No abstract provided.

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 …

Holistic Approaches To Classroom Instruction, A Precursor To More Collaborative Lawyers: Reflections Of A Professor And Collaborative Lawyer, Kathy-Ann K. Hart

Kathy-Ann K Hart

Coupling of academia and practice in legal curricula can make programs of law study more holistic than many of them currently are. Encouraging law students to learn in more than one way in the classroom engages them as multi-dimensional learners or beings. As a collaborative lawyer I have a vested interest in increasing the numbers of lawyers who choose collaborative practice and I believe that peaceful, more co-operative ways of practicing law (like employing collaborative principles) can create future lawyers and a legal profession that’s healthier and happier. In this article, I reflect on my application of holistic approaches in …

"Old And Making Hay:" The Results Of The Pro Bono Institute Survey On The Viability Of A "Second Acts" Program To Transition Attorneys To Retirement Through Pro Bono Work, Kenneth G. Dau-Schmidt, Esther F. Lardent, Reena Glazer, Kellen Ressmeyer

Kenneth G. Dau-Schmidt

In his 1998 Fairchild Lecture, Professor Marc Galanter proposed the idea that senior attorneys should be encouraged to undertake “a second ‘public service’ career” as a way of transitioning to retirement. The logic for encouraging such “Second Acts” in lawyers’ careers is compelling. As Professor Galanter has demonstrated, in the coming years, there will be record numbers of attorneys navigating the transition to retirement as the “Baby Boomers” reach their golden years. This substantial body of highly skilled lawyers could have a significant impact on fulfilling unmet needs for legal representation. If even 5% of the practicing attorneys over sixty-five …

Gender And The Legal Profession: The Michigan Alumni Data Set 1967-2000, Kenneth G. Dau-Schmidt, Marc S. Galanter, Kaushik Mukhopadhaya, Kathleen E. Hull

Kenneth G. Dau-Schmidt

The entry of women into the legal profession has forever changed both lawyers and the profession. In the brief period since the 1970’s, women have gone from a few brave pioneers constituting 3% of the bar to almost half of all new law students and a third of practicing attorneys. Women have brought to the profession a different set of assets and problems than men, focusing attention on the problem of balancing work and family in a way not previously experienced by the profession. In this study, we use the University of Michigan Law School Alumni Data Set to undertake …

The Technology Of Law And Economics, John H. Moran

John H Moran

The article suggests that the field of Technology drives the fields of Economics and Law. It relies on Richard Posner's law and economics ideas, but also argues that technologists have increasing influence on the emerging world order, to the detriment of the existing government and banking based power structure.

Neither Saints Nor Devils: A Behavioral Analysis Of Attorneys' Contingent Fees, Eyal Zamir, Ilana Ritov

Eyal Zamir

The market for legal services, and particularly lawyers’ Contingent Fee (CF) arrangements, have been extensively studied from legal, economic and sociological standpoints, but curiously not from a behavioral perspective. Building on Kahneman and Tversky’s Prospect Theory, this paper presents a series of experiments designed to reveal people’s preferences regarding attorneys’ fees and their perceived fairness.

Contrary to common economic wisdom, we demonstrate that loss aversion (rather than risk aversion or incentivizing the lawyer to win the case) plays a major role in clients’ preferences for CF. Facing a choice between a mixed “gamble” and a pure positive one, plaintiffs prefer …

Stalking The Walking Wounded: An Empirical Study Of Lawyer Distress, Work Satisfaction, And Decisionmaking Preferences, Susan Daicoff

Susan Daicoff

Abstract: Attorney distress is an empirically-documented phenomenon. Depression and alcoholism, for example, occur among attorneys at about twice the rate found in the general population. Empirical research also suggests that certain personality attributes and decisionmaking preferences distinguish attorneys from the general population. Previous research had investigated the relationship of lawyer dissatisfaction to certain personality attributes and decisionmaking preferences, as well as the relationship of law student distress to values. Focusing on practicing lawyers, this empirical study investigated the relationship between attorney distress, work dissatisfaction, and two decisionmaking preferences. This study found no relationship between the two decisionmaking preferences and attorney …

Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Schaffzin

Katharine Traylor Schaffzin

The common interest doctrine offers many time and cost-saving advantages to clients. It also carries with it the consequence that counsel representing a party to a common interest group accept ethical or fiduciary responsibilities on behalf of the other members of that group. This pseudo-attorney-client relationship may limit an attorney's abilities to fulfill her ethical obligations to her client. This article explores the mechanisms for protecting the client and the attorney before entering a common interest arrangement.

When Theory Met Practice: Teaching Tort Law From A Practical Perspective, Prentice L. White

Prentice L White

WHEN THEORY MET PRACTICE: TEACHING TORT LAW FROM A PRACTICAL PERSPECTIVE ABSTRACT When I initially entered the world of academia, I did so with the intention of not only teaching my students the black letter law, but I also envision an opportunity to share with them my experiences in the practice. My philosophy has always been “How can you teach what you have not learned.” Learning is an on-going process and it is not limited to the classroom—especially in professional school. That’s why it was so important for me to share a practical experience with my students as much as …

An Aesthetic Defense Of The Non-Precedential Opinion: The Easy Cases Debate In The Wake Of The 2007 Amendments To The Federal Rules Of Appellate Procedure, Caleb E. Mason

Caleb E. Mason

Abstract: In this article I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80% of the output of the courts of appeals. The recent amendment to Fed. R. App. Proc. 32.1(a), requiring that all circuits allow citation to nonprecedential opinions, has provoked considerable debate about how, and whether, to issue opinions in the class of cases currently resolved by NPOs. I defend the issuance of NPOs not as a necessary concession to overwork, but rather as a valuable decisional form that plays a useful if not vital role in inculcating in practitioners the perceptual …

Election Day At The Bar, Allison Hayward

Allison Hayward

Abstract: Election Day At The Bar Allison R. Hayward Since the 2000 election, national parties and a number of special interest groups have changed how they “lawyer up” for election day. They recruit nationally for attorneys to work in whatever “hot spots” develop. Yet in key jurisdictions their activities may amount to the unauthorized practice of law (“UPL’) UPL discipline of these attorneys may seem unlikely so long as all participants in elections desire to mobilize these volunteers. Yet enforcement could be triggered once local interests who rely on suppression or fraud recognize that outside volunteers will cause them to …

Representing Children Representing What?, Annette Ruth Appell

annette appell

This essay reflects on how lawyering for children relates to the personhood of children and youth. More concretely, it critically explores the role of children’s lawyers in promoting the individual and systemic interests of their youthful constituents. At a time when children are increasingly viewed as rights-holders, provided with attorneys, and subject to coercive state intervention and restriction, questions regarding who speaks for children and how children’s voice informs discussions about childhood, dependency, family and community are particularly cogent. On behalf of individual, and classes of, children, lawyers are actively engaged in the creation, definition and promotion of rights regarding …

The Ethics Of Legal Process Outsourcing To India—Is The Practice Of Law A "Noble Profession," Or Is It Just Another Business?, Aaron R. Harmon

Aaron R. Harmon

Published as “The Ethics of Legal Process Outsourcing—Is the Practice of Law a ‘Noble Profession,’ or is it Just Another Business?” 13 U. of Fl. J. Tech. L. & Pol’y 41 (June 2008). In this Article, I analyze the emergence of LPO in India, as well as the ethical considerations raised for firms that offshore legal work. I focus on India, where the industry has evolved most rapidly, for two reasons. First, as a result of British colonization, many Indian workers speak English fluently, thereby facilitating an East-West synergy more easily than other countries. Second, India utilizes a common law …

Transnational Study Programs And The Global Law School, Luca C.M. Melchionna

Luca Melchionna

TRANSNATIONAL STUDY PROGRAMS AND THE GLOBAL LAW SCHOOL. Luca C. M. Melchionna ABSTRACT The “knowledge-based” economy, namely the new world economy based on the exploration, production, sharing and protection of knowledge, is growing. Europe and the U.S. are the leading destinations for U.S. and international students seeking to study or work abroad. However, still today less than 1% of the current U.S. student body decides to temporarily go abroad during college or graduate school. Aware of the importance of international education, Congress is in the process of enacting the Paul Simon Study Abroad Foundation Act with the aim of sending …

Employment As Transaction, Rachel S. Arnow-Richman

Rachel S. Arnow-Richman

This paper offers a fresh perspective on the upper-level employment law class based on the theme of employment as transaction. Like much of law school, employment law is often taught from a public advocacy perspective in which the primary role of the lawyer is to vindicate workers’ rights or defend managerial action. As a doctrinal matter, however, courts are showing increased attention to the role of private ordering in defining workplace rights and assessing liability. Courts routinely examine employers’ efforts to redress unlawful behavior under antidiscrimination law and consistently sanction the use of arbitration agreements waiving rights to a federal …

The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande

John Lande

This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate. The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, …

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

carolyn grose

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 first …

The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg

Beth Thornburg

Appellate judges in the twenty-first century find themselves in a world in which litigation – both civil and criminal -- involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world’s library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. When judges feel the need for additional information, the …

Courting Success: The Supreme Court Fellows Program At 35, Terence Lau, Jon Gould, Lauren Bell, John Domurad

Terence Lau

In 1979, PS published an article called "Inside the Courts: The Judicial Fellows Program." The article detailed the genesis and early history of the program, its initial funding, the selection process, the fellows' experiences, and their post-fellowship careers. At the time the article was published, the fellows program had existed for six years and counted 14 participants. Twenty-nine years later, the ranks of fellows has swelled to 104, an increase of 87%. Other than a name change in 2003 to the "Supreme Court Fellows Program," what has changed to the program in the three decades since that article was published? …

Beneath The Surface: Metadata, Transparency And The Ethical Use Of Information, Michael Katz

Michael Katz

While the gains from the digital revolution are tremendous in terms of increased efficiency, access to information and searchability, the change in information format has caught some off guard. No longer is data limited to what is available on a piece of paper. Yet there is a price to pay for these gains. Where once a letter’s recipient could not see anything but what the sender openly presented in the letter, today that email, word processing document and spreadsheet all contain additional information not readily visible on their face. Beneath the surface, packed into the file, exists metadata - information …