Law and Society Commons^™

Book Review, Jay M. Feinman

Journal of Legal Education

No abstract provided.

The Ethics Of Cause Lawyering: An Examination Of Criminal Defense Lawyers As Cause Lawyers, Margareth Etienne

ExpressO

Criminal defense attorneys are often motivated by an intricate set of moral and ideological principles that belie their reputations as amoral (if not immoral) “hired guns” who would do anything to get their guilty clients off. Using empirical data from interviews with forty criminal defense attorneys I explore the motivations that inform their decisions to enter the field of criminal defense and the values that influence the manner in which they do their jobs. I conclude that many criminal defense attorneys are in fact cause lawyers who are committed to individual clients but also the “cause” of legal reform in …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

"In A Case, In A Book, They Will Not Take A Second Look!" Critical Reading In The Legal Writing Classroom, Debra Curtis, Judith Karp

Faculty Scholarship

This article is based on a presentation that was first assembled for the Southeastern Regional Legal Writing Conference in September 2003. The theme of that conference was "The Basics and Beyond: Building Solid Skills on Flawed Foundations." As legal writing professions with nine years of teaching experience between us, we immediately honed in on "reading" as a core lawyering skill--though it is the one that seemed most flawed in the first-year legal writing class. We determined that case analysis, statute analysis, synthesis, and application were not possible unless students critically read the material with which they were working. Many students …

Licensing And Discipline Of Fiscal Professionals In The State Of Florida: Attorneys, Certified Public Accountants, And Real Estate Professionals, Debra Curtis

Faculty Scholarship

The purpose of this article is to compare the regulation of several professions within the state of Florida. In Florida, attorneys are self-regulated through the Florida Bar. As a branch of the Supreme Court of Florida, The Florida Bar serves as the licensing agency of attorneys within the state. Two other professions--real estate professionals and certified public accountants--in which the public also places fiscal trust and responsibility, are regulated through a different agency, the Department of Business and Professional Regulation. This article seeks to examine and explain the different methods of licensing and regulation between these professional groups and looks …

Screening The Law: Ideology And Law In American Popular Culture, Mark Niles, Naomi Mezey

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Religious Lawyering's Second Wave, Russell G. Pearce, Amelia J. Uelmen

Faculty Scholarship

Since the mid-1990s, the "religious lawyering movement" has expanded dramatically, receiving greater attention within the academy and the bar. As the movement enters what we term its "second wave" of development, this essay begins with a look back to its "first wave" of path-breaking scholarship and its gradual shift toward more institutionalized structures and programs. It argues that the predominant characteristic of first-wave religious lawyering scholarship was to claim a space within the professional conversation for lawyers to bring religious values to bear on their work. The essay then predicts that in the second wave religious lawyering conversations and scholarship …

Why Lawyers Are Unhappy, Martin E.P. Seligman, Paul R. Verkuil, Terry H. Kang

Articles

[According to the authors of this article, the growing unhappiness of lawyers, particularly young lawyers, stems from three causes: (1) Lawyers are selected for their pessimism (or "prudence") and this generalizes to the rest of their lives; (2) Young associates hold jobs that are characterized by high pressure and low decision latitude, exactly the conditions that promote poor health and poor morale; and (3) American law is to some extent a zero-sum game, and negative emotions flow from zero-sum games....

This article has been shared with practitioners as well as academics. It grows out of faculty seminars held at the …

The Ramifications Of The Fcc's Failure To Minimize Negative Media Portrayals Of Latinas And Black Women, Fiordaliza Batista

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Federal Communications Commission (FCC) has failed to address the systemic issue of negative and stereotypical portrayals of minorities, particularly minority women, in media. These portrayals perpetuate racial and gender stereotypes, contributing to societal discrimination and violence. The FCC's inaction, coupled with its refusal to recognize minority status in licensing and employment practices, exacerbates these issues. The note calls for revised policies to promote diversity and accurate representations in broadcasting, emphasizing the need for regulatory reforms to address these harms.

In Re Adoption Of Gustavo G., Abigail Zigman

NYLS Law Review

No abstract provided.

Book Review Of English Lawyers Between Market And State: The Politics Of Professionalism, Harry Arthurs

Journal of Legal Education

No abstract provided.

The Economics Of Limited Liability: An Empirical Study Of New York Law Firms, Scott Baker, Kimberly D. Krawiec

ExpressO

Since the rapid rise in organizational forms for business associations, academics and practitioners have sought to explain the choice of form rationale. Each form contains its own set of default rules that inevitably get factored into this decision, including the extent to which each individual firm owner will be held personally liable for the collective debts and obligations of the firm. The significance of the differences in these default rules continues to be debated. Many commentators have advanced theories, most notably those based on unlimited liability, profit-sharing, and illiquidity, asserting that the partnership form provides efficiency benefits that outweigh any …

The System Of Syllogism, Richard Dien Winfield

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

On What A "Private Attorney General" Is--And Why It Matters, William B. Rubenstein

Vanderbilt Law Review

May 17, 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education.' This precise day also marked the sixty-first anniversary of the Supreme Court's first use of the phrase "private attorney general." For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion …

Fall 2004

Bill of Particulars

No abstract provided.

Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates …

The Tenuous Case For Conscience, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

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 …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

Gentleman's Agreement: The Antisemitic Origins Of Restrictions On Stockholder Litigation, Lawrence E. Mitchell

ExpressO

A deeply ingrained, seemingly ineradicable, hostility to plaintiffs’ lawyers and especially to plaintiffs’ lawyers in stockholder suits seems to have existed for most of the past century. This hostility is manifest not only in the tone of judicial opinions but in law review articles, the popular press, and, often, in legislation. This article analyzes the circumstances under which the first security-for-expense statute was adopted in New York in 1944, including the contemporaneous justification for the statute, focusing on the demographics of the New York bar at the time and the ethnic sociology of New York. In so doing, it concludes …

Using Our Brains: What Cognitive Science Teaches About Teaching Law Students To Be Ethical, Professionally Responsible Lawyers, Alan M. Lerner

ExpressO

Throughout our lives, below the level of our consciousness, each of us develops powerful values, intuitions, expectations, and needs that powerfully affect both our perceptions and our judgments. Placed in situations in which we feel threatened, or which implicate our values, our brains, relying on those implicitly learned, emotionally weighted, memories, can "downshift," to primitive, self-protective problem solving techniques - fight or flight. Because these processes operate below the radar of our consciousness, we react without reflection or the opportunity for interdiction. Thus, it may be that automatic, “emotional” reaction, rather than thoughtful, reasoned analysis leads to our responses to …

Attorney Fees In Class Action Settlements: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Study of two comprehensive class action case data sets covering 1993-2002 shows that the amount of client recovery is overwhelmingly the most important determinant of the attorney fee award. Even in cases in which the courts engage in the lodestar calculation (the product of reasonable hours and a reasonable hourly rate), the client's recovery generally explains the pattern of awards better than the lodestar. Thus, the time and expense of a lodestar calculation may be wasteful. We also find no robust evidence that either recoveries for plaintiffs or fees of their attorneys increased overtime. The mean fee award in common …

Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider

Articles

Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have …

Civil Obedience, W. Bradley Wendel

Cornell Law Faculty Publications

Discussions of legal ethics generally assume that lawyers should deliberate straightforwardly on the basis of reasons to act or refrain from acting. This model of deliberation fails to account for the role of the law in resolving normative disagreement and coordinating social activity by people who do not share comprehensive ethical doctrines. The law represents a collective decision about what citizens ought to do, which replaces the reasons individuals would otherwise have to act. This Article contends that legal ethics ought to be understood as an aspect of this theory of the authority of law. On this account, lawyers have …

Gollum, Meet Sméagol: A Schizophrenic Rumination On Mediator Values Beyond Self-Determination And Neutrality, James R. Coben

Cardozo Journal of Conflict Resolution

Let me begin by declaring my biases. First, I am a dissatisfied consumer of mediation services, having represented both employment discrimination and family law clients in mediations. The mediators' rapid retreat to caucus, their tendency to incorrectly evaluate my clients' cases, and their strong push for particular settlement structures while simultaneously proclaiming process neutrality, all too frequently have left me (and my clients) disappointed and disillusioned. Second, I am a chronicler of "mediation car wrecks" - a voyeur, if you will, of those times when mediations go so badly that the parties end up disputing about them in court. Third, …

Religious Lawyering In A Liberal Democracy: A Challenge And An Invitation William A. Brahms Lecture On Law & Religion, Russell G. Pearce

Faculty Scholarship

At a time when many believe that law is no longer a noble profession, many lawyers see no reason to devote time and energy to promoting the public good. Religious lawyering may offer a powerful antidote: a robust framework for lawyers to integrate into their professional lives their most deeply rooted values, perspectives and critiques, and persuasive reasons to improve the quality of justice and work for the common good. At its best, religious lawyering echoes Martin Luther King's advice to the street sweeper. How wonderful it would be, indeed, if we practiced law so well that the host of …

Satirical Legal Studies: From The Legists To The Lizard, Peter Goodrich

Michigan Law Review

In Part I, I expand on the distinction between the Horatian and the Menippean forms of satire and then suggest that a similarly bold division can be used to map satirical legal studies. In support of that argument, I use the example of the earliest surviving satirical legal poem within the Western tradition. My analysis of this exemplary satirical legal artifact delineates four principal modes of legal satire that will organize the ensuing discussion of more contemporary examples of the genre. In Part II, I will address the currently popular and yet somewhat novel mode of ad hominem or nominate …

Fall 2003

Bill of Particulars

No abstract provided.

Interpersonal Dynamics, Joshua D. Rosenberg

ExpressO

This article explains the importance of relationship skills to attorneys. It explains why, despite the significance of these skills to attorneys, law schools and law firms ignore them. It then explains how these skills can be taught in law school, and how a relation al perspective can become not simply an important part of the law, but also an important part of the lives of lawyers. It develops and supports an ap proach that develops the cognitive, behavioral, perceptual and emotional skills and awareness essential to both accurate communication and productive and meaningful relationships. This approach is quite different from …

Busting The Professional Trust: A Comment On William Simon’S Ladd Lecture, W. Bradley Wendel

Cornell Law Faculty Publications

It is truly an honor to be asked to Comment on the work of William Simon, one of the scholars who has done the most to contribute to the reputation of legal ethics as a field with intellectual rigor and depth, as well as one with significant implications for legal theory generally. The power of his critical faculties is unmatched: the platitudes offered by the organized bar in defense of the dominant view of legal ethics lie in tatters after the sustained assault in the first three chapters of The Practice of Justice. In fact, it can be difficult …