Legal Ethics and Professional Responsibility Commons^™

The Immunity Of The Attorney General To Law Society Discipline, Andrew Martin

Articles, Book Chapters, & Popular Press

English Abstract: The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion …

Mediation, Legal Clinic Program

Course Descriptions and Information

Students will learn and develop skills crucial to the role of mediators and legal professionals. By focusing and implementing mediation methodologies, students will learn skills of active listening and communications; conflict, issue and interests spotting, information gathering and negotiations techniques; problem-solving strategies and approaches; and effective mediation settlement agreement drafting.

The Legal And Medical Ethical Entanglements Of Infant Male Circumcision And International Law, Paul Mclaughlin

Scholarly Works

The practice of infant male circumcision has been debated by legal and medical experts for years. The practice, once seen as a social norm, has come under opposition by children’s rights, legal, and medical organisations around the world. In order to meet the requirements of international treaty law and allow infant male children the fullest opportunity for self determination, infant male circumcision must be treated under the law and by medical practitioners with the same degree of opposition that female genital mutilation has received.

Ethical Implications Of Posthumous Reproduction, Valarie K. Blake, Hannah L. Kushnick

Book Chapters

No abstract provided.

Monroe Freedman: Prophet Of Biblical Justice, Timothy W. Floyd

Articles

Professor Monroe Freedman’s distinctive view of legal ethics was individual autonomy. Professor Freedman’s provocative Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, and his even more provocative answers, have drawn criticism as being too focused on individual autonomy.

Certainly, Monroe had a profound respect for individual dignity and autonomy, and he readily asserted that respect for individual autonomy was central to his view of legal ethics. In what follows, however, I will suggest that his emphasis on dignity and autonomy were derived from an even deeper commitment to justice. More particularly, Monroe Freedman had a passion for …

Legal And Medical Ethical Entanglements Of Infant Male Circumcision And International Law, Paul Mclaughlin

Law Library Faculty Scholarship

Recommended citation: Paul Jerome McLaughlin, Jr., Journal of Medical Law and Ethics, Volume 4, Number 1, March 2016, pp. 23-38 (16).

The practice of infant male circumcision has been debated by legal and medical experts for years. The practice, once seen as a social norm, has come under opposition by children’s rights, legal, and medical organizations around the world. In order to meet the requirements of international treaty law and allow infant male children the fullest opportunity for self determination, infant male circumcision must be treated under the law and by medical practitioners with the same degree of opposition that …

The Professional, Spring 2016, Henry Latimer Center For Professionalism

The Professional Newsletter

The Professional is a publication of The Florida Bar Henry Latimer Center for Professionalism. It is published triannually and provides practical information regarding professionalism relevant to the practice of law in Florida.

Transnational Legal Practice [In 2015], Laurel Terry

Faculty Scholarly Works

This 2015 Year-in-Review article continues the tradition of collecting and publicizing the developments that occurred during the year related to transnational legal practice (TLP). This year’s article builds on the work set forth in the 2014 Year-in-Review.

The 2014 TLP Year-in-Review provided a departure from the Year-in-Review’s typical method of presentation by identifying two categories of what that article called “TLP-Nets.” One group of TLP-Nets is nationally based and the other is inherently transnational. The 2014 article identified examples of TLP-Nets and highlighted the meeting points and relationships that facilitate border-crossing for the variety of actors involved in TLP policy-making …

From Out To In: The Opportunity And Need For Clinical Law Programs To Effectively Serve Low-Income Lgbt Individuals, Sarah Steadman

Faculty Scholarship

Although the recent legalization of same-sex marriage in the U.S. is heartening for lesbians and gays, the resulting discriminatory legislative backlash against the LGBT population shows that this community continues to be marginalized and at risk. Over two hundred anti-LGBT bills have been introduced in state legislatures since January 2016. North Carolina recently passed anti-LGBT legislation that eliminated and prohibits LGBT anti-discrimination protections, and bars transgender individuals from using gender congruent public bathrooms. One result of recent and historical discrimination is LGBT individual's newfound and pre-existing fears of encountering anti-LGBT bias when seeking legal services, even as recent developments have …

Note, The Role Of Nonverbal Persuasion In Juror Decision-Making And The Need To Regulate The Trial Consulting Industry, Jaclyn M. D'Esposito

Notre Dame Journal of Law, Ethics & Public Policy

This Note agrees that the trial consulting industry merits regulation, it departs from the literature inasmuch as it argues that the profession should be regulated with respect to its influence on juror decision-making, as opposed to trial consultants' professional and ethical obligations. To that end, Part II seeks to establish the persuasive effect of nonverbal communication and provides a brief history of the trial consulting industry. Part III continues with an examination into the relevant law with respect to nonverbal communication and trial consulting. In particular, Part III.A.1 considers the various ways in which the law recognizes the role of …

Friends With Benefits: Analyzing The Implications Of United States V. Newman For The Future Of Insider Trading, Tebsy Paul

American University Business Law Review

No abstract provided.

The Moral Obligation Of Law Schools To Address Law Student Well-Being: A Review Essay About The Happy Laywer, Todd David Peterson

Notre Dame Journal of Law, Ethics & Public Policy

This Article argues that law schools have an obligation to educate law students about how they can achieve meaningful and personally satisfying careers in the law and, in addition, how they can buffer themselves against the stress and depression that far too frequently arise in both law school and the practice of law.

Note, Establishing Rule Of Law Through Informal Justice Systems And Development Programs, Patrick Akers

Notre Dame Journal of Law, Ethics & Public Policy

Rule of law occurs when a government and its citizens are bound by and abide by the law. Rule of law has no one-size-fits-all approach, and any initiative must take into account cultural norms and how institutions and individuals are incentivized. Informal justice systems are best positioned to do this, particularly for the poor and indigenous ethnic groups. While informal justice systems are criticized for human rights violations and elite capture, among other things, some of these shortfalls are adequately addressed through existing development programs, which are most effective when subject to market forces and when they utilize participatory accountability …

"I Still Live In Guantánamo!" Human Rights Abuses Continue After Detainees Leave Guantánamo, Peter Jan Honigsberg

Notre Dame Journal of Law, Ethics & Public Policy

This essay will describe the experiences of detainees who have resettled in third or host countries, as well as detainees who have been resettled in their home countries. The essay is based on interviews W2G has filmed with the detainees, in addition to other sources. The overarching message from the interviews and research is that when the U.S. transfers detainees to third countries, the U.S. has not been mindful in finding the best fit or even a suitable environment for the men as they re-enter society. In addition, in transferring detainees out of Guantánamo-whether to third countries or to the …

Front Matter

Notre Dame Journal of Law, Ethics & Public Policy

Table of Contents

The Restricted Nature Of The Profit Motive: Perspectives From Law, Business, And Economics, Keith William Diener

Notre Dame Journal of Law, Ethics & Public Policy

This essay investigates the permissible limits of the profit motive in business contexts by examining theory and cases from law, business, and economics. This essay aims to remind the reader that the theoretical principles upon which the profit motive is founded require abidance to law, ethics, and customary societal rules. Accordingly, the application of the profit motive as a purported justification for illegal or immoral business decisions does not withstand scrutiny. Part I distinguishes between restricted and unrestricted profit motives, and illustrates this distinction by the use of three business cases that improperly appeal to the unrestricted profit motive. Part …

Roe V. Wade & The Legal Implications Of State Constitutional "Personhood" Amendments, Clark D. Forsythe, Keith Arago

Notre Dame Journal of Law, Ethics & Public Policy

Two generations after the renewed focus on state constitutions, questions remain whether state constitutional amendments are an effective means for changing public policy, for protecting human life, or for challenging Roe v. Wade. Our aim in this article is to examine their likely legal impact on state law and their legal impact on Roe v. Wade. Part II summarizes the history and current legal protection for the unborn child as a human being or person in the law. Part III examines whether these "personhood" amendments conflict with Roe. Part IV looks at the practical legal implications of applying the due …

How Corporate Governance Is Made: The Case Of The Golden Leash, Matthew D. Cain Ph.D., Jill E. Fisch, Sean J. Griffith, Steven D. Solomon

Faculty Scholarship

This Article presents a case study of a corporate governance innovation — the incentive compensation arrangement for activist-nominated director candidates colloquially known as the “golden leash.” Golden leash compensation arrangements are a potentially valuable tool for activist shareholders in election contests. In response to their use, several issuers adopted bylaw provisions banning incentive compensation arrangements. Investors, in turn, viewed director adoption of golden leash bylaws as problematic and successfully pressured issuers to repeal them. The study demonstrates how corporate governance provisions are developed and deployed, the sequential response of issuers and investors, and the central role played by governance intermediaries …

Note, Are Officers Equipped To Protect And Serve Their Communities? An Examination Into The Militarization Of America's Police And Police Legitimacy, Jaclyn M. D'Esposito

Notre Dame Journal of Law, Ethics & Public Policy

Tension between police officers and local residents is nothing new. Community relationships with and perceptions of law enforcement have ebbed and flowed over the years. Nonetheless, the fact that recent criticisms of law enforcement practices are not novel does not mean that claims about mistrust in local police are unfounded. However, surprisingly absent from discussions about present problems with law enforcement are what caused the "broken relationship" between officers and their communities, and how to mend these ever-increasing rifts. This Note seeks to fill that void by uncovering what has caused the current and deteriorated relationship between law enforcement and …

Note, Inhibiting Educational Choice: State Constitutional Restrictions On School Choice, Patrick Loughery

Notre Dame Journal of Law, Ethics & Public Policy

Kentucky, Massachusetts, and Michigan all have restrictions that do not permit public funds to be allocated for private school choice programs like tuition scholarships. This article will help facilitate the debate in these three states as they consider the best option for providing the children of their state with a quality education. This article will proceed in five parts. Part I gives a brief history of private school choice and outlines the current legal issues facing state private school choice programs. It is important to understand the historical context before proceeding to the current situation. Parts II, III, and IV …

Note, Two Wrongs Do Not Make A Right: The Need To Revisit The Ellerth/Faragher Affirmative Defense, Robert R. Graham Iii

Notre Dame Journal of Law, Ethics & Public Policy

In the seventeen years since the Court's initial pronouncement, and Justice Thomas' denouncement, of the Ellerth/Faragher affirmative defense, a split has materialized among the United States courts of appeals as to how to correctly apply the defense. Namely, as the case law below illustrates, there is disagreement as to whether both prongs of the defense are necessary in cases dealing with a single, severe instance of sexual harassment. While these "single, severe" cases sparked the debate, they also highlighted a larger issue with the structure of the Ellerth/Faragher defense that applies equally to cases of pervasive harassment- whether an employer …

Presumption Law In Action: Why States Should Not Be Seduced Into Adopting Joint Custody Presumption, Maritza Karmely

Notre Dame Journal of Law, Ethics & Public Policy

Many argue that the answer is simple: equal custody-or a presumption for joint custody-is not only fair to parents but also best for children. A presumption for judges has surface appeal: it provides an equitable-sounding starting point. Indeed, many legislators throughout the country are considering new laws that would mandate a presumption for shared custody. However, recent social science research, legal scholarship, and judicial decisions suggest that shared parenting may not always be in a child's best interests. In this paper, I argue against the presumption that shared custody is in a child's best interest. An analysis of recent case …

The Prosecutor’S Duty Of Silence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Prosecutors enjoy broad opportunities to communicate with the public outside the courtroom. Justice Holmes’s famous dictum -- “The theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print” – is just that – a “theory.” The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher “special” duty to serve justice rather than a private client. And …

In Memory Of Monroe Freedman: The Hardest Question For A Prosecutor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

I’ve chosen to honor Monroe Freedman’s iconic essay on the hardest questions for a criminal defense attorney by posing the same question for prosecutors. What is the hardest question for a prosecutor? This in itself is a hard question. The thousands of federal, state, and local prosecutors in the country would likely give widely varying responses – discretionary charging, immunity grants, bargained pleas, unreliable witnesses, police testimony, and disclosure duties, for starters. Too, prosecutors are not a generic group. Just as some defense lawyers might recoil or be indifferent to Freedman’s provocative thesis, so might many prosecutors reject or be …

A Critical Assessment Of The Model Standards Of Conduct For Mediators (2005): Call For Reform, Omer Shapira

Marquette Law Review

Over the years, commentators have raised concerns about some aspects of the Model Standards, for example, their failure to adequately guide mediators in situations of competing values, and the vagueness of their substantive provisions. No work to date has exposed the Model Standards to a systematic and comprehensive assessment, which is necessary for an evaluation of their adequacy as a coherent statement of the fundamental ethical guidelines for mediators, and for the development of a viable alternative to them. Ten years after the adoption of the revised Model Standards in 2005, this Article comes to fill the gap in the …

Open Letter On Ethical Norms In Intellectual Property Scholarship, Robin Feldman, Mark A. Lemley, Jonathan Masur, Arti K. Rai

Faculty Scholarship

As scholars who write in intellectual property (“IP”), we write this letter with aspirations of reaching the highest ethical norms possible for our field. In particular, we have noted an influx of large contributions from corporate and private actors who have an economic stake in ongoing policy debates in the field. Some dollars come with strings attached, such as the ability to see or approve academic work prior to publication or limitations on the release of data. IP scholars who are also engaged in practice or advocacy must struggle to keep their academic and advocacy roles separate.

Our goal is …

When It Comes To Lawyers, Is An Ounce Of Prevention Worth A Pound Of Cure, Laurel Terry

Faculty Scholarly Works

This 3-page blog post addresses the topic of proactive lawyer regulation, which is also known as proactive management-based regulation or PMBR. This blog post reviews Professor Susan Fortney's article entitled "Promoting Public Protection through an “Attorney Integrity” System: Lessons from the Australian Experience with Proactive Regulation System," and summarizes some of the impressive data that Professor Fortney collected in Australia, including her finding that sixty-two percent of the respondents reported that they agreed or strongly agreed with the following statement: the self-assessment process ‘was a learning exercise that enabled our firm to improve client service.’” The article also reports that …

Being Good Lawyers: A Relational Approach To Law Practice, Eli Wald, Russell G. Pearce

Faculty Scholarship

In response to past generations of debates regarding whether law is a business or profession, we advance an alternative approach that rejects the dichotomies of business and profession, or hired gun and wise counselor. Instead, we propose a relational account of law practice. Unlike frameworks grounded in assumptions of atomistic individualism or communitarianism, a relational perspective recognizes that all actors, whether individuals or organizations, have separate identities yet are intrinsically inter-connected and cannot maximize their own good in isolation. Through the lens of relational self-interest, maximizing the good of the individual or business requires consideration of the good of the …

Applied Ethics: A Misnomer For A Field?, Leslie Francis

Utah Law Faculty Scholarship

You may have guessed that I’m a pragmatist, methodologically. To that, I plead guilty; I think ethics could learn a great deal from the pragmatist tradition. And one of the most important things it could learn is to object to artificial separations between “ethics” and its “application.”

Wait, Wait, Don’T Tell Me: Accountability, Plausible Deniability, Model Rule 1.13, And The Role Of Corporate Counsel In An Age Of Enhanced Monitoring, Irma S. Russell

Faculty Works

No abstract provided.