Law Commons^™

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay

Paul R. Tremblay

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without …

Rebellious Lawyering, Regnant Lawyering, And Street-Level Bureaucracy, Paul R. Tremblay

Paul R. Tremblay

This Article explores the professional responsibilities of progressive lawyers representing the poor and disadvantaged. The author argues that lawyers representing the poor are generally good, energetic lawyers committed to social justice and lessening the pain of poverty. Subsequently, the defects found in poverty lawyering are structural, institutional, political, economic, and ethical. Therefore, the author posits that the mission of teachers and practitioners should be to develop practice patterns and proposals that account for the street-level experiences of legal services lawyers on the front lines. By examining the notions of rebellious and regnant lawyering, the author seeks to illuminate how these …

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Paul R. Tremblay

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns …

Toward A Community-Based Ethic For Legal Services Practice, Paul R. Tremblay

Paul R. Tremblay

This Article is concerned with legal services lawyers and how they ethically might allocate their time and resources among their clients. Part I of this Article describes the institutional terrain of legal services practice and introduces the concept of the lawyer as street-level bureaucrat, operating within a complex, high demand human services bureaucracy. Part II discusses the problems inherent in attempts to ration care within a subsidized law practice. The purpose of Part II is to reveal the practice tensions that establishment professional ethics fail to accommodate, and that form an underlying justification for a discussion of triage principles. Part …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Lawyers And Professional Autonomy: Reflections On Corporate Lawyering And The Doctrine Of Informed Consent, Mark Spiegel

Mark Spiegel

No abstract provided.

Applying Anti-Money Laundering/Anti-Terrorist Financing Controls To The United States Legal Profession: A Response To The Senate Permanent Subcommittee Report On The Proceeds Of Foreign Corruption, Nicholas S. Kazmerski

Nicholas S. Kazmerski

"Applying Anti-Money Laundering/Anti-Terrorist Financing Controls to the United States Legal Profession: A Response to the Senate Permanent Subcommittee Report on the Proceeds of Foreign Corruption" ***Abstract:This paper examines and comments on the reforms to the U.S. legal profession as proposed by the Senate Permanent Subcommittee Report on the Proceeds of Foreign Corruption (issued February 2010), specifically whether these proposed reforms are realistic or necessary given the existing attorney regulatory framework. To do so, it will first be necessary to provide a general overview of money laundering/terrorist financing followed by a background of anti-money laundering regulation starting with the Bank Secrecy …

Zacharias’S Prophecy: The Federalization Of Legal Ethics Through Legislative, Court, And Agency Regulation, Daniel R. Coquillette, Judith A. Mcmorrow

Daniel R. Coquillette

In his 1994 seminal article on Federalizing Legal Ethics, Prof. Fred Zacharias examined the need for a national and uniform code of ethics for attorneys. Prof. Zacharias was correct that there has been increasing pressure to federalize legal ethics, but that process is occurring not through articulation of national norms but rather through decentralized contextualization of attorney conduct norms. Federal agencies that direct securities practice, immigration, tax, patent, labor and many other areas of federal practice are increasingly supplementing state regulations to specifically regulate the attorneys who appear before their agencies. Targeted substantive federal law and treaty obligations also increasingly …

Toward An Ecclesiastical Professional Ethic: Lessons From The Legal Profession, Daniel R. Coquillette, Judith A. Mcmorrow

Daniel R. Coquillette

As the Catholic Church struggles with the aftermath of the clergy sexual abuse crisis, some have explored the possibility of an ecclesiastical code of professional conduct. Lawyers' long and storied history with professional codes offers a cautionary tale to those exploring an ecclesiastical code of ethics. As priests to our secular religion of law, lawyers are called forth and mandated by a competent authority to function in a defined role, the specifics of which are reflected, in part, in lawyer codes. As lawyers moved from Canons of Ethics (1908) to a Code of Professional Responsibility (1969) to Rules of Professional …

Medicine And Law As Model Professions: The Heart Of The Matter (And How We Have Missed It), Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article has two coordinate goals: to undergird the functionalist understanding of professionalism with classical normative theory and to advance the classical theory of civic virtue with the insights of modern social science. More specifically, this article seeks to connect classical theories about the care of the body and the soul with modern theories of market and government failure. The first step is to distinguish two kinds of professions, caring professions like medicine and public professions like law, by identifying the distinctive virtue of each. The distinctive virtue of the caring professions is single-minded commitment to those in their care, …

Professional Identity As Advocacy: The Good, The Bad, The Unseen, Robert Rubinson

Robert Rubinson

The legal profession adheres to a story of a unified profession. Nevertheless, the profession has distinct professional sub-groups which repeatedly represent clients with interests adverse to those represented by attorneys who identify with other sub-groups. The idea of “professional identity as advocacy” describes how such professional sub-groups accuse opposing sub-groups of greed, self-aggrandizement, or worse. This is most notable in two areas: personal injury litigation and criminal cases. This process has two seemingly contradictory consequences. First, it renders narrow areas extraordinarily visible, thus defining popular discourse and conceptions about lawyers and law. Second, it masks vast areas of litigation and …

How Do Roles Generate Reasons? On The Methods Of Legal Ethics, Stephen Galoob

Stephen Galoob

Debates about legal ethics should be oriented around the generative problem, which asks two fundamental questions. First, how does the lawyer’s role generate normatively compelling reasons for action? Second, what kinds of reasons can this role generate?

Every substantive theory of legal ethics is based on a solution to the generative problem. On the generative problem method, we should evaluate these theories based on their implicit solutions to the generative problem. None of the main theories of legal ethics is based on a solution to the generative problem that is both structurally valid and empirically verified.

The generative problem method …

Supervisory Responsibility For The Office Of Legal Counsel, Avidan Cover

Avidan Cover

No abstract provided.

Supervisory Responsibility For The Office Of Legal Counsel, Avidan Cover

Avidan Cover

In the wake of the notorious Justice Department Office of Legal Counsel (OLC) torture memoranda, various reforms have been proposed to prevent future erroneous and poorly reasoned legal opinions on matters of the utmost national importance. The need for reform is all the more pressing in a post-9/11 world in which the Executive branch will continue to arrogate, often in secret, various national security-related powers. None of the proposals, however, addresses the supervisory role that Justice Department and other Executive branch lawyers play in the formation of OLC opinions.

This Article argues that the failure to hold more senior government …

The Boundary Claim's Caveat: Lawyers And Confidentiality Exceptionalism, Rebecca Aviel

Rebecca Aviel

In legal ethics scholarship, the “boundary claim” stands for the idea that lawyers must represent clients zealously but within the bounds of the law. The idea has long been embraced by the legal profession as both a description of--- and justification for--- the unique moral, social, and political space occupied by lawyers. This Article asserts that this professed commitment to obey the law comes with a caveat: the legal profession has been unwilling to acknowledge that lawyers must comply with laws that require the disclosure of client confidences. In fact, the bar has a fairly extensive history of suggesting or …

Making Plaintiffs Whole: A Tax Problem Of Interest, William E. Foster

William E Foster

This article illustrates the dramatic tax impact of interest awards in otherwise non-taxable litigation recoveries. While plaintiffs who recover personal injury awards typically receive favorable treatment, those receiving interest on such awards are taxed on the interest and are unable to utilize deductions for attorney’s fees paid to obtain the recovery. Further, the attorney’s portion of the recovery often will be included in the plaintiff’s gross income. The result is that the plaintiff recovers less of the interest than the Treasury or her attorney, preventing the plaintiff from being made whole. After reviewing the historical and theoretical framework that produces …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Scott A Moss

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …

Funding Gideon's Promise By Viewing Excessive Caseloads As Conflicts Of Interests, Heidi R. Anderson

Heidi R Anderson

Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two—the one that has slipped by without sufficient notice or criticism—is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.

In this article, I urge courts to “constitutionalize” the excessive caseload …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew Taslitz

Andrew E. Taslitz

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

Fear Of Facebook: Private Ordering Of Social Media Risks Incurred By Healthcare Providers, Nicolas P. Terry

Nicolas P Terry

The last two years have seen important quantitative and qualitative shifts in social media use patterns in the healthcare environment. Reacting to present and future risks there has been a rapid deployment of private ordering: social media policies and other contractual constructs emanating from physicians, professional organizations, employers and educators. These private, often contractual attempts to regulate online interactions or social media conduct are not all benign, themselves creating ethical or legal risk. This article, a follow-up to Physicians And Patients Who ‘Friend’ Or ‘Tweet’: Constructing A Legal Framework For Social Networking In A Highly Regulated Domain, 43 IND. L. …

Towards A Nexus Of Virtue, Ronald J. Colombo

Ronald J Colombo

Corporate law, like all law, should be directed toward the common good. The common good requires that corporate activity be restrained, if not actively directed, by human virtue. An analysis of the corporate enterprise suggests that those corporate actors with the greatest stake in the exercise of virtue, and best positioned to influence corporate activity via the exercise of virtuous judgment, are the corporation’s officers. Thus, one of the primary objectives of corporate law should be the promotion of virtue among corporate officers.

Contrary to what some might assume, the promotion of virtue among corporate officers need not entail a …

Expanding Pro Bono's Role In Legal Education, Margaret M. Cordray

Margaret M Cordray

As an increasing number of Americans are unable to afford an attorney to help with urgent legal problems, they are left to navigate a complex legal system on their own. In the effort to motivate more attorneys to provide desperately needed pro bono services, law schools must play a greater role in introducing students to the value and importance of pro bono work. This article contends that by implementing a program which offers students meaningful pro bono work that is both educational and easily accessible, law schools can involve more students in pro bono activities. The article also offers an …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Working Paper Series

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty to vet …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …