Law Commons^™

Gaiben & Bengoshi Llp: Cross-Border Legal Practice In Japan, Erich W. Struble

Erich W Struble

In 2005, reforms to Japan’s 1986 Foreign Lawyers Law became effective that permitted foreign law firms to fully merge with Japanese law firms. Several major international law firms immediately took advantage of this liberalization in order to provide more seamless and comprehensive service to their clients. Other international law firms chose not to fully merge with Japanese law firms, opting instead to remain in “joint venture” arrangements with Japanese firms or with individual Japanese bengoshi. Still other international law firms with a presence in Japan have decided to remain independent. After providing the necessary background, this Article explains why different …

The Cartography Of Legal Inquiry, Tonya Kowalski

Tonya Kowalski

As lifelong learners, we all know the feelings of discomfort and bewilderment that can come from being asked to apply existing skills in a completely new situation. As legal educators, we have also experienced the frustration that comes from watching our students struggle to identify and transfer skills from one learning environment to another. For example, a first-semester law student who learns to analogize case law to a fact pattern in a legal writing problem typically will not see the deeper applications for those skills in a law school essay exam several weeks later. Similarly, when law students learn how …

The Advocate

The Advocate

No abstract provided.

Reconceptualizing Prosecutorial Misconduct Through Moral Disengagement Theory: A Social Cognitive Approach, Lawton P. Cummings

Lawton P Cummings

This Article argues that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging “moral disengagement” in prosecutors. “Moral disengagement” refers to the social cognition theory developed by Albert Bandura and others, which identifies the mechanisms that operate to disengage an individual’s moral self-sanctions that would otherwise inhibit the individual from engaging in injurious conduct. Empirical studies have shown that a person’s level of moral disengagement, as a dispositional trait, is an accurate predictor of the person’s level of aggression and anti-social behavior, and that an individual’s level of moral disengagement …

Refashioning Legal Pedagogy After The Carnegie Report: Something Borrowed, Something New, Debra M. Schneider

Debra M Schneider

The Carnegie Foundation published in 2007 its ground-breaking book titled Educating Lawyers: Preparation for the Profession of Law, in which it pointed out significant pedagogical imbalance in legal education. In particular, the Carnegie report said that law schools should infuse their curricula with more practical and ethical training. How a law school ought to accomplish the Carnegie aim is another challenge, one that this paper squarely addresses.

Traditional legal education is sorely imbalanced. A law student receives rigorous training in legal doctrine and analytical skills—he learns to “think like a lawyer”—but is left with little training in practical skills or …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Can We Talk (With Or Without Beer)? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro

Adjoa A. Aiyetoro

This article is ultimately about healing the racial divide illustrated by the recent arrest of Henry Louis Gates. It expands on the scholarship of unconscious racism by exploring a trigger for unconscious racism that up to this point scholars have only alluded to: the language of race. It argues that society often censures an African descendant speaker who uses the language of race or racism. This censure occurs because many in American society have embraced the myth of a colorblind society. They believe that to assert otherwise and to question whether there are racial implications associated with a given action …

Recovery Of Interest On A Tax Underpayment Caused By A Tax Advisor's Negligence, Jacob L. Todres

Jacob L. Todres

OUTLINE/ABSTRACT

Page

Part I 2 INTRODUCTION

Part II 4 RECOVERABILITY OF INTEREST ON A TAX UNDERPAYMENT —THREE VIEWS

Presentation and explanation of the traditional, majority view, allowing the recovery of such interest; the minority view, prohibiting the recovery of such interest; and the modern, intermediate view, permitting the recovery of such interest only when the plaintiff paid more interest than the interest earned by the use of the tax underpayment.

Part III 20 THE DEVELOPMENT AND STATUS OF THE THREE VIEWS

History of the development of each of the views leading to a tally of the states currently following each …

A Crumbling Pyramid: How The Evolving Jurisprudence Defining “Employee” Under The Adea Threatens The Basic Structure Of The Modern Large Law Firm, Jessica Fink

Jessica Fink

Under the Age Discrimination in Employment Act, as well as other federal antidiscrimination laws, only “employees” as defined by the statute are permitted to sue. In recent years, the U.S. Supreme Court and lower courts have provided guidance regarding when partners in large law firms might be deemed “employees” protected by these laws. What has emerged from the courts’ decisions in these cases is a test that places significant emphasis on the amount of power and control that a partner has within a firm: Partners deemed to lack a sufficient amount of power and control within their firms may be …

Of Victims, Villains And Fairy Godmothers: Regnant Tales Of Predatory Lending, Carolyn Grose

carolyn grose

The subprime mortgage crisis has exposed a system of predatory and irresponsible lending on a scale we are only beginning to comprehend. Those initially harmed in this crisis – the canaries in the coal mine – were largely low-income people of color. As the crisis has unfolded, the potential solutions available to such borrowers seem to privilege one kind of legal story over all others: the story of the poor person as a victim in need of rescuing.

In order to win, therefore, lawyers who represent these clients often fall back on a default narrative about their clients as unwitting …

The Economics Of The Attorney-Client Privilege: A Comprehensive Review And A New Justification, Keith A. Kendall

Keith A Kendall

The attorney-client privilege is one of the fundamental aspects of legal professional practice in the United States. Despite this central importance, there have been many calls over the centuries for the privilege’s abolition. A relatively recent trend is for such criticisms to be based on an economic analysis of the privilege’s mechanics, including incentives for rent seeking behavior, signaling problems faced by clients and incentives to overinvest in litigation. Responses to these criticisms that also utlize economic reasoning center on the economics of information production, recognizing that the privilege serves a useful function, notwithstanding the critiques. In addition to these …

Invigorating The Role Of The In-House Legal Advisor As Steward In Ethical Culture And Governance At Client-Business Organizations: From 21st Century Failures To True Calling, Ben G. Pender

Ben G Pender II

Invigorating the Role of the In-House Legal Advisor as Steward in Ethical Culture and Governance at Client-Business Organizations From 21st Century Failures to True Calling J.D., University of St. Thomas School of Law, 2009 M.A. Sociology, Organizational Effectiveness, Clark Atlanta University, 1996. B.S., Sociology, Virginia Polytechnic Institute and State University, 1988. All Rights Reserved. © 2009. This Article examines the need to invigorate the role of the in-house legal advisor from ‘mere legal technician’ to simultaneous legal advisory gatekeeper and ethical steward at client-business organizations. This article asserts that the often-acquiescent in-house legal advisor as ‘mere legal technician’ is partially …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …

What Law Schools Should Teach Future Transactional Lawyers: Perspectives From Practice, Michael A. Woronoff

Michael A Woronoff

Since at least the 1980’s, law schools have been chided for doing a poor job at teaching skills. This criticism has been accompanied by pressure to increase their emphasis on skills training. The pressure increased with the publication of the McCrate Report in 1992, and then again with the publication of the Carnegie Report in 2007. This article is based on my remarks given on June 10 at the 2009 mid-year meeting of the AALS Conference on Business Associations. In those remarks, I respond to the questions “Are law schools teaching students adequate transactional skills?” and “From the standpoint of …

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

David Mears

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 service …

The Hidden Mandate: How Federal Rule Of Evidence 502 Will Push Enterprises To Adopting A More Organized Electronic Filing System, Nicholas A. Matlach

Nicholas A Matlach

Inexpensive storage combined with inefficient procedures result in a catacomb of electronic documents that are only raised during litigation. Recently passed Federal Rule of Evidence requires “reasonable steps” to be taken to prevent disclosure. The judicial flexibility of 502 will allow judges to continue a decade long trend of pushing enterprises to either adopt document management systems or risk losing their privileged information to inadvertent waivers.

Women In The Law School: It's Time For More Change, Karen Czapanskiy, Jana B. Singer

Jana B. Singer

No abstract provided.

How The Cleveland Bar Became Segregated: 1870-1930, Robert N. Strassfeld

Robert N. Strassfeld

Abstract

Paper Title: How the Cleveland Bar Became Segregated: 1900-1930

This article examines the changing perimeters of professional opportunity and the professional choices made by Cleveland’s African American lawyers in the early twentieth century. At the turn of the century, the Cleveland bar could fairly be described as racially integrated. The openness of the bar and the response of African American lawyers shaped the day-to-day professional lives of those lawyers. This openness manifested itself in a number of interracial law practices, in a client base for black lawyers that was predominantly white, in the court appointment practices of white judges, …

Beyond Cardboard Clients In Legal Ethics, Katherine R. Kruse

Katherine R Kruse

Historically, legal ethics has been preoccupied with the moral conflicts that arise when the pursuit of a client’s interests requires a lawyer to harm innocent third parties, undermine the truth-seeking norms of the legal system, or both. But is over-zealous loyalty to clients really the biggest problem in legal professionalism? This Article argues that it is not. Rather, the obsession in legal ethics with the problems of zealous partisanship dates back to the preference of early legal ethicists—many of whom were philosophers—to focus on conflicts between professional role morality and ordinary morality. To generate these conflicts, legal ethicists had to …

An Economic Justification For The Attoney-Client Privilege, Keith A. Kendall

Keith A Kendall

The attorney-client privilege is one of the oldest doctrines affecting legal practise. Notwithstanding its longevity, there have been regular calls for its abolition over the years. This paper reviews the literature calling for abolition and that favoring retention that utilize economic reasoning. Weaknesses on both sides are identified, with a new justification for retention put forward that addresses these weaknesses.

"Ph.D. Lite": A New Approach To Teaching Scholarly Legal Writing, Jacqueline Lipton

Jacqueline D Lipton

Most American law schools require the satisfaction of an upper level writing requirement, usually in the form of a seminar paper, or “Note”, for graduation. The problem for many students is that the J.D. is not generally geared towards learning scholarly writing. In recent years, the author has experimented with reformulating a seminar class as a “writing workshop” in order to focus on the scholarly writing process. In so doing, she has drawn from experiences supervising legal research degrees in other countries where research-based LL.M. degrees and Ph.D. degrees in law are the norm. This essay details her approach – …

Delivery Of Legal Services To Immigrant Small Business Owners: The Problems And A Model To Solve Them, Pablo A. Ormachea, William A. Langer

William A Langer

Delivery of Legal Services to Immigrant Small Business Owners: The Problems and a Model to Solve Them. By Pablo Ormachea & William Langer

Immigrant entrepreneurs not only provide essential support for individual families, but also serve as key engines of economic growth for United States cities. While immigrant small-business owners continuously stimulate growth in various economic sectors, creating new jobs and helping to develop inner-city neighborhoods, they overcome considerable obstacles and barriers to reach these achievements. This article argues that a deeper understanding of such systemic barriers can help to reduce such barriers so that an increasingly larger number of …

The Quiet National Security Revolution: Suing For Citizenship, Jeffrey A. Breinholt

Jeffrey A Breinholt

The article looks at an alarming trend of aliens suing for naturalization or adjustment of status where they feel that the post-9/11 terrorist screening mechanisms are too onerous. The article looks at current controversies over the No-Fly list, as well as the Cold War efforts to maintain the security of U.S. seaports, and, based on this history, concludes that it is just a matter of time before the judiciary begins to manage U.S. immigration policy and anti-terrorism measures.

'Wishin And Hopin And Thinkin And Prayin, Plannin And Dreamin:' The Narrative Theor[Ies] Of Predatory Lending, Carolyn Grose

carolyn grose

This is an article that uses a predatory lending case as a vehicle to examine the metaphor of the lawyer as storyteller. For many years and in many law reviews now, we have been reading and writing about the relationship between narrative and story and the law. I add my voice once again to this discussion by examining more closely this idea that as representors of clients, lawyers are constructors and tellers of stories. Specifically, I examine the process lawyers go through and the choices lawyers make in figuring out what stories to tell and how to tell them.

The …

Of Authorship And Audacity: An Empirical Study Of Gender Disparity And Privilege In The “Top Ten” Law Reviews, Minna J. Kotkin

Minna J. Kotkin

In today’s law schools, article placement is a significant consideration in hiring, promotion, tenure, and lateral mobility. This article analyzes authorship by gender and home school “privilege” in 15 law reviews (the “top ten”) over a three year period. It compares these data with the gender composition of the professoriate and of the 15 schools’ faculties, using Association of American Law Schools and American Bar Association statistics. The mean percentage of articles authored by one or more women (and no men) is 20.4. Nationally, women comprise 31% of the tenured/tenure-track professoriate and 28.3% at the 15 schools. At the associate …

Restoring Equal Justice: Towards General Progressive Fee Shifting, Issachar Rosen-Zvi

Issachar Rosen-Zvi

Equal justice in present-day America is a myth. Millions are essentially blocked from accessing the civil justice system. The central factor in this predicament is the fees charged by attorneys, whose prohibitive rates prevent more and more Americans from asserting their legal rights. In order to ensure equal justice, it is, therefore, essential that measures be devised to counteract the effect of attorney fees on access to civil justice for low- and average-income individuals, to enable them to engage in litigation on equal terms with the more well-to-do. While the civil justice system offers a variety of mechanisms designed to …

The Puzzle Of Judicial Education: The Case Of Chief Justice William De Grey, Emily Kadens

EMILY KADENS

Unlike civil law systems in which young lawyers choose between an attorney career track and a judicial one, Anglo-American legal systems mostly select their judges from the whole pool of bar members, regardless of the fact that the appointees may have had no experience with the court on which they are placed. Such a method of selection ensures that many judges come to the bench still needing to prepare themselves for their new positions. This problem is not a new one. At least by the seventeenth century, the specialization of legal practice in England meant that many neophyte judges had …

Beyond The Model Rules: Aristotle, Lincoln, And The Lawyer's Aspirational Drive To An Ethical Practice, Billie J. Ellis, William T. Ellis

Billie J. Ellis Jr.

Many scholars have criticized the Model Rules for omitting the aspirational ethic of earlier ABA codes, leaving only the minimum, mandatory regulations for conduct. Our article BEYOND THE MODEL RULES: ARISTOTLE, LINCOLN, AND THE LAWYER’S ASPIRATIONAL DRIVE TO AN ETHICAL PRACTICE, offers a new approach to dealing with this "aspirational void" created by the Model Rules, yet it does not engage in the useful yet typical debates regarding this problem, including the need for greater emphasis on ethics in law schools, reform of the ABA, reform of the Model Rules, or the need for a so called professional movement. Rather, …

Teaching The “Portraits, Mosaics And Themes” Of The Federal Rules Of Evidence, Lee D. Schinasi

Lee D. Schinasi

Teaching the “Portraits, Mosaics and Themes” of The Federal Rules of Evidence: This article discusses an approach to teaching, learning, and applying the Federal Rules of Evidence – the “portraits and mosaics regime.” It is designed to accomplish four things: First, for professors new to teaching evidence, the “portraits and mosaics regime” is a macro level introductory overview of the statute and is aimed at providing perspective and insight. It introduces the statutes’s most significant concepts, how they interrelate, and how they can be applied. Second, it can be used as a teaching outline for new evidence professors approaching their …

Chief William's Ghost: The Problematic Persistance Of The Duty To Sit, Jeffrey W. Stempel

Jeffrey W Stempel

In 1974, the duty to sit -- a doctrine positing that judges should recuse themselves only if the case for disqualification was compelling -- was abolished in federal courts. Then-Justice William Rehnquist's refusal to disqualify himself in Laird v. Tatum (1972) was a partial catalyst in this legal reform, which was consistent with the ABA position on the duty to sit, at least in what I term it's "pernicious" form. Notwithstanding the official abolition of the doctrine, it continues to be invoked, as does the problematic Rehnquist opinion defending his indefensible refusal to recuse in Laird v. Taturm. This article …