Law Commons^™

Corporate 'Miranda' Warnings, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

Administrative agencies and prosecutors have adopted formal and informal measures to push corporations to establish compliance programs, to disclose wrongdoing voluntarily, and to cooperate with government investigations, creating what some commentators refer to as a culture of cooperation. Key to internal investigations are employee interviews by counsel.

Employees, especially senior employees, may assume that the lawyers representing their organizational employers represent them as well in matters relating to their work. To avoid this misunderstanding, both in-house and outside counsel now use “corporate Miranda warnings” or “Upjohn warnings.” In law enforcement interrogation, the Miranda warning is an antidote to the coercive …

The (Lack Of) Enforcement Of Prosecutor Disclosure Rules, Kevin C. Mcmunigal

Faculty Publications

In this Article, I assess the apparent prospects for increased disciplinary enforcement of state ethics rules based on Rule 3.8(d) of the American Bar Association's (“ABA”) Model Rules of Professional Conduct that mandates prosecutorial disclosure of exculpatory information. In particular, I focus on whether it makes sense to view recent ABA Formal Opinion 09-454, in which the ABA gave an expansive reading to Model Rule 3.8(d), as the bellwether of an era of increased enforcement of ethical disclosure rules for prosecutors.

Defense Counsel And Plea Bargain Perjury, Kevin C. Mcmunigal

Faculty Publications

No abstract provided.

An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry

Faculty Scholarly Works

The Financial Action Task Force (FATF) is a thirty-eight-member intergovernmental organization whose mission is to fight money laundering and terrorism financing; the U.S. is a founding member of the FATF. The FATF is best known for its 40 Recommendations, many of which are directed towards various kinds of “gatekeepers” who are in a position to facilitate or inhibit money laundering and terrorism financing. (These were previously known as the 40+9 Recommendations). Lawyers are among those to whom the FATF’s recommendations apply. This article provides the introduction for the Journal of the Professional Lawyer’s Symposium about the application of the FATF …

Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton

College of Law Faculty Scholarship

This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is …

Closing The Legislative Experience Gap: How A Legislative Law Clerk Program Will Benefit The Legal Profession And Congress, Dakota S. Rudesill

Georgetown Law Faculty Publications and Other Works

Most federal law today is statutory or rooted in statutes, which are created through a complicated process best understood through work experience inside legislatures. This article demonstrates that America’s most influential lawyers are not getting it. My new empirical analysis of the work experience of the top 500 lawyers nationwide as ranked by Lawdragon.com finds that work experience in legislative bodies is dramatically less common among the profession’s leaders than is formative work experience in courts, government executive agencies, private practice, and academe. This article continues the empirical study of the professional experience of the legal profession’s elite published in …

The Financial Action Task Force Guidance For Legal Professionals: Missed Opportunities To Level The Playing Field, Louise Hill

Louise L Hill

No abstract provided.

The Law Professor As Counterterrorist Tactician, Lawrence Rosenthal

Lawrence Rosenthal

This essay responds to Professor Aziz Huq's provocative article, "The Signaling Function of Religious Speech in Domestic Counterterrorism." Professor Huq contends that current counterterrorist doctrine overemphasizes the use of religious speech as a "signal' for incipient terrorist violence. He argues that the costs of this approach for religious liberty are significant, and its reliability suspect. Professor Huq's assessment of costs, however, overlooks that current doctrine permits only initiation of an investigation on the basis of religous speech, while even Professor Huq's suggested reforms would require consideration of a potential investigative subject's speech if they were operationalized. His proposals might make …

It's All About The People: Creating A "Community Of Memory" In Civil Procedure Ii, Part One, Jennifer E. Spreng

Jennifer E Spreng

In Fall 2008, a nascent classroom community emerged among my Civil Procedure students, teaching assistants and I. That term’s adventure eventually became the vital “past” for the fully formed community that would knit students of future classes together as one.

The genesis of this early classroom community was my ideal of “the good lawyer” as the small-firm or small-jurisdiction practitioner I had known as a seven-year solo practitioner in a town of 50,000 people. That ideal was a combination of “the rhythms of the law” that run throughout the specialties; a more respectful and less stratified model of professionalism, and …

The Psychology Of Hope: Legal Educators Must Strengthen Students' "Waypower" To Succeed, Cassandra L. Hill

Cassandra L. Hill

The power of hopeful thinking is often undervalued. According to C.R. Snyder, the father of hope theory, hope reflects a mental set in which we have the willpower to move toward a goal and the “waypower” or mental capacity to devise effective methods, plans, or paths to reach that goal. Both the willpower to succeed and the waypower to solve problems are required to have a truly hopeful attitude. Applying this formula to legal education, if law students lack either the willpower or the waypower for their goals, they cannot have high hope to succeed. And hope is a key …

Lincoln's Lessons For Lawyers, Thomas J. Stipanowich

Thomas J. Stipanowich

Professor Stipanowich discusses lessons lawyers can learn from Abraham Lincoln.

Lawyers And The Power Of Community: The Story Of South Ardmore, Corey S. Shdaimah

Corey S Shdaimah

Community organizing and lawyering have often been seen as incompatible. Lawyers are said to take over, many legal remedies are not amenable to and even dampen lay participation, and legal efforts can siphon money and other scarce resources. However, community organizations choose to seek out legal assistance for the benefits it provides despite their awareness of the dangers of working with lawyers and engaging the law. Much of the more recent literature shows that lawyers working with community organizations are also sensitive to these potential risks and benefits. This article presents the author’s efforts to organize her South Ardmore community …

Pro-Prosecution Judges: "Tough On Crime," Soft On Strategy, Ripe For Disqualification, Keith Swisher

Keith Swisher

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures. Building on this description and the work of empiricists, …

Arbitration: The "New Litigation", Thomas J. Stipanowich

Thomas J. Stipanowich

Today, binding arbitration procedures are employed in a wider variety of contracts than at any time in our nation's history, and arbitration has become a wide-ranging surrogate for court trial of civil disputes. As a result, arbitration is subjected to unprecedented stresses and strains, and it is fair to say that arbitration has never been subject to wider criticism. Once advocates promoted arbitration as a means of avoiding the contention, cost and expense of court trial; economy, efficiency and the opportunity to fashion true alternatives to litigation are still associated with conventional perceptions of arbitration. Yet today business arbitration is …