Legal Ethics and Professional Responsibility | Open Access Articles

Telling A Story, Changing The World: California Rural Legal Assistance, Jonathan J. Chavez

Capstone Projects and Master's Theses

This capstone project attempts to provide an in-depth view of how stories influence change in our lives as well as in the field of law.

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Rethinking The Foundational Critiques Of Lawyers In Social Movements, Scott L. Cummings

Fordham Law Review

This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements—from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order—and the response of a new generation of movement lawyers eager to lend support has refocused attention on the appropriate role that lawyers should play in advancing progressive social change. Rather than fall back on familiar critical themes, the time is ripe for developing a new affirmative vision.

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Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall media coverage …

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Demosprudence On Trial: Ethics For Movement Lawyers, In Ferguson And Beyond, Justin Hansford

Fordham Law Review

This Article suggests that although civil litigation remains a viable tool, the vanishing trial has limited impact on movement lawyers because we can use the law to promote social change outside of the courtroom. The demosprudence framework helps us to understand this process. By applying this framework to the movement lawyering context, movement lawyers can adapt to the void in voice created by the vanishing trial in civil litigation and still help the movement.

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Rethinking The Foundational Critiques Of Lawyers In Social Movements, Scott L. Cummings

Fordham Law Review

This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements—from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order—and the response of a new generation of movement lawyers eager to lend support has refocused attention on the appropriate role that lawyers should play in advancing progressive social change. Rather than fall back on familiar critical themes, the time is ripe for developing a new affirmative vision.

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Demosprudence On Trial: Ethics For Movement Lawyers, In Ferguson And Beyond, Justin Hansford

Fordham Law Review

This Article suggests that although civil litigation remains a viable tool, the vanishing trial has limited impact on movement lawyers because we can use the law to promote social change outside of the courtroom. The demosprudence framework helps us to understand this process. By applying this framework to the movement lawyering context, movement lawyers can adapt to the void in voice created by the vanishing trial in civil litigation and still help the movement.

Go to article

Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall media coverage …

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Poverty, The Great Unequalizer: Improving The Delivery System For Civil Legal Aid, Latonia Haney Keith

Catholic University Law Review

When individuals in the United States face civil justice issues, they are not entitled to legal counsel and therefore must secure paid counsel, proceed pro se or qualify for free legal assistance. As a result of the economic downturn, the number of Americans who are unable to afford legal counsel is now at an all-time high. In response to this ever-widening justice gap, the public interest community has launched multiple initiatives to supplement the underfunded legal aid system. Though valiant, this article argues that this approach has unfortunately created a complex, fragmented and overlapping delivery system for legal aid. This …

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Note, Minors In The Major Leagues: Youth Courts Hit A Home Run For Juvenile Justice, Christina M. Dines

Notre Dame Journal of Law, Ethics & Public Policy

Youth courts provide an efficient—albeit unconventional—alternative to the formal juvenile justice system. Although structures of youth courts vary, the purpose remains the same: to rehabilitate and deter youth offenders in a forum largely governed by their minor peers—one free of the stigma associated with the traditional justice system. This Note examines the expansion of youth courts; various structures of the courts; advantages and disadvantages of a system driven by peer mentorship and peer decision- making; typical sanctions imposed on a juvenile offender; and the wider implications of youth court from an economic and social justice perspective.

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Wait, Who Are We Talking About Here? Searching For A Consistent Approach To Applying Rfra To Corporations, Steven J. Harrison

Notre Dame Journal of Law, Ethics & Public Policy

There is perhaps no idea in contemporary American law that is more publicly contentious than that of “corporate personhood.” Of all of the Supreme Court cases dealing with corporations and the corporate entity, few probably thought that a decision could surpass Citizens United in public controversy and divisiveness produced by the decision, which brought the legal fiction of the “corporate person” to the forefront of popular debate and discussion. Then came Burwell v. Hobby Lobby Stores, Inc., which not only addressed whether corporations could “act” in a manner that seemed only a possibility for “real” or “natural” persons, which recalled …

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Rock, Paper Scissors…Loot!, Michael A. Mogill

Faculty Scholarly Works

No abstract provided.

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The English Rule - It Ain't English, And Ought Not Be American., Timothy M. Mulligan

St. Mary's Law Journal

Abstract Forthcoming.

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The Demise Of Anti-Panhandling Laws In America., Natie Pilgram Neidig

St. Mary's Law Journal

Abstract Forthcoming.

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The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera

St. Mary's Law Journal

Abstract Forthcoming.

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Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., Allison R. Ebanks

St. Mary's Law Journal

Abstract Forthcoming.

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Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher Chen

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article examines how a director’s social capital might affect his or her behavior, the board’s performance, and corporate governance, as well as the potential normative implications of the director’s social network. We argue that the quality of board performance could be improved where the social network closure within the board is high and there are many non-redundant contacts beyond the board. Network closure can improve trust and collaboration within a board, while external contacts may benefit a company with more diverse sources of information. Moreover, different network positioning leads to the inequality of social capital for directors. With more …

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United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., Daniel Haley

St. Mary's Law Journal

Abstract Forthcoming.

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Covenants Running With The Land., Michael P. Pearson

St. Mary's Law Journal

The analysis of real covenants in wellhead contracts (e.g., gas purchasing, gathering, processing, etc.) by Texas courts has not been consistent. As a result, some bankruptcy courts are holding that a debtor in bankruptcy is not liable for a prior contractual obligation, unless the covenant is held to be a real covenant running with the land. For instance, the holding in In re Sabine Oil & Gas Corp. (Sabine I) contradicts the holdings in Westland Oil Development Corp. v. Gulf Oil Corp. and in Inwood North Homeowners' Association, Inc. v. Harris. The Sabine I court held that because the Acreage …

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Next Up: A Proposal For Values-Based Law Reform On Unilateral Withholding And Withdrawal Of Potentially Life-Sustaining Treatment, Jocelyn Downie, Lindy Willmott, Ben White

Articles, Book Chapters, & Popular Press

As the legalization of assisted dying shifts from a project for law reform to one of implementation, the gaze for Canadian end of life law and policy academics and practitioners should be turned quickly to another pressing issue – the unilateral withholding and withdrawal of potentially life-sustaining treatment. What should happen when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should? While the future of end of life law and policy no doubt includes many other issues, this is an urgent and immediate horizon issue for Canada as well …

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A Test For Freedom Of Conscience Under The Canadian Charter Of Rights And Freedoms: Regulating And Litigating Conscientious Refusals In Health Care, Jocelyn Downie, Francoise Baylis

Articles, Book Chapters, & Popular Press

Conscientious refusal to provide insured health care services is a significant point of controversy in Canada, especially in reproductive medicine and end-of-life care. Some provincial and territorial legislatures have developed legislation or regulations, and some professional regulatory bodies have developed policies or guidelines, to better reconcile tensions between health care professionals’ conscience and patients’ access to health care services. As other groups attempt to draft standards and as challenges to existing standards head to court, the fact that the meaning of “freedom of conscience” under the Canadian Charter of Rights and Freedoms is not yet settled will become ever more …

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Should Medical Assistance In Dying Be Extended To Incompetent Patients With Dementia? Research Protocol Of A Survey Among Four Groups Of Stakeholders From Quebec, Canada, Gina Bravo, Claudie Rodrigue, Vincent Thériault, Marcel Arcand, Jocelyn Downie, Marie-France Dubois, Sharon Kaasalainen, Cees M. Hertogh, Sophie Pautex, Lieve Van Den Block

Articles, Book Chapters, & Popular Press

Background: Alzheimer’s disease and related disorders affect a growing number of people worldwide. Quality of life is generally good in the early stages of these diseases. However, many individuals fear living through the advanced stages. Such fears are triggering requests for medical assistance in dying (MAiD) by patients with dementia. Legislation was recently passed in Canada and the province of Quebec allowing MAiD at the explicit request of a patient who meets a set of eligibility criteria, including competence. Some commentators have argued that MAiD should be accessible to incompetent patients as well, provided appropriate safeguards are in place. Governments …

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A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them …

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A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them …

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Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao

Brooklyn Journal of Corporate, Financial & Commercial Law

Accountability is an essential aspect of corporate governance and it has been argued that the “wenze” system of accountability in China comes very close to the accountability systems developed in Anglo-American corporate governance. This Article examines the role of cultural factors, namely guanxi and its derivatives, in corporate governance in China to determine what effect, if any, these cultural factors have on the operation and development of the “wenze” system in large listed companies. The Article specifically considers whether the cultural elements affect accountability, and if so, how and to what extent. It also explores whether these cultural factors are …

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The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

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The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

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Addressing Cultural Bias In The Legal Profession, Debra Chopp

Articles

Over the past two decades, there has been an outpouring of scholarship that explores the problem of implicit bias. Through this work, commentators have taken pains to define the phenomenon and to describe the ways in which it contributes to misunderstanding, discrimination, inequality, and more. This article addresses the role of implicit cultural bias in the delivery of legal services. Lawyers routinely represent clients with backgrounds and experiences that are vastly different from their own, and the fact of these differences can impede understanding, communication, and, ultimately, effective representation. While other professions, such as medicine and social work, have adopted …

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A New Remedy For Junk Science: Article 11.073 And Texas's Response To The Changing Landscape In The Forensic Sciences., Trevor Rosson

St. Mary's Law Journal

Abstract Forthcoming.

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No Appropriation Without Compensation: How Per Se Takings Of Personal Property Check The Power To Regulate Commerce., William Sumner Macdaniel

St. Mary's Law Journal

Abstract Forthcoming.

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Pipe(Line) Dreams Post-Denbury Green., Nicholas Laurent, Christopher Oddo

St. Mary's Law Journal

In Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, the Beaumont Court of Appeals articulated the test that should be applied when considering whether the condemnation of private property, which would result favorably for pipeline companies, should be allowed. In Denbury, the Beaumont Court of Appeals balanced the protection of private property rights against the need for true common carrier pipeline companies to condemn private property. The court held that in order to condemn private property, a substantial public interest must exist to justify such condemnation. The Texas Supreme Court, however, reversed the decision of the Beaumont Court of …

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Full-Text Articles in Legal Ethics and Professional Responsibility

Telling A Story, Changing The World: California Rural Legal Assistance, Jonathan J. Chavez

Capstone Projects and Master's Theses

Rethinking The Foundational Critiques Of Lawyers In Social Movements, Scott L. Cummings

Fordham Law Review

Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

Demosprudence On Trial: Ethics For Movement Lawyers, In Ferguson And Beyond, Justin Hansford

Fordham Law Review

Rethinking The Foundational Critiques Of Lawyers In Social Movements, Scott L. Cummings

Fordham Law Review

Demosprudence On Trial: Ethics For Movement Lawyers, In Ferguson And Beyond, Justin Hansford

Fordham Law Review

Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

Poverty, The Great Unequalizer: Improving The Delivery System For Civil Legal Aid, Latonia Haney Keith

Catholic University Law Review

Note, Minors In The Major Leagues: Youth Courts Hit A Home Run For Juvenile Justice, Christina M. Dines

Notre Dame Journal of Law, Ethics & Public Policy

Wait, Who Are We Talking About Here? Searching For A Consistent Approach To Applying Rfra To Corporations, Steven J. Harrison

Notre Dame Journal of Law, Ethics & Public Policy

Rock, Paper Scissors…Loot!, Michael A. Mogill

Faculty Scholarly Works

The English Rule - It Ain't English, And Ought Not Be American., Timothy M. Mulligan

St. Mary's Law Journal

The Demise Of Anti-Panhandling Laws In America., Natie Pilgram Neidig

St. Mary's Law Journal

The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera

St. Mary's Law Journal

Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., Allison R. Ebanks

St. Mary's Law Journal

Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher Chen

Brooklyn Journal of Corporate, Financial & Commercial Law

United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., Daniel Haley

St. Mary's Law Journal

Covenants Running With The Land., Michael P. Pearson

St. Mary's Law Journal

Next Up: A Proposal For Values-Based Law Reform On Unilateral Withholding And Withdrawal Of Potentially Life-Sustaining Treatment, Jocelyn Downie, Lindy Willmott, Ben White

Articles, Book Chapters, & Popular Press

A Test For Freedom Of Conscience Under The Canadian Charter Of Rights And Freedoms: Regulating And Litigating Conscientious Refusals In Health Care, Jocelyn Downie, Francoise Baylis

Articles, Book Chapters, & Popular Press

Articles, Book Chapters, & Popular Press

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao

Brooklyn Journal of Corporate, Financial & Commercial Law

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Addressing Cultural Bias In The Legal Profession, Debra Chopp

Articles

A New Remedy For Junk Science: Article 11.073 And Texas's Response To The Changing Landscape In The Forensic Sciences., Trevor Rosson

St. Mary's Law Journal

No Appropriation Without Compensation: How Per Se Takings Of Personal Property Check The Power To Regulate Commerce., William Sumner Macdaniel

St. Mary's Law Journal

Pipe(Line) Dreams Post-Denbury Green., Nicholas Laurent, Christopher Oddo

St. Mary's Law Journal