Legal Ethics and Professional Responsibility Commons^™

Frozen Ethics: Melting The Boundaries Between Medical Treatment And Organ Procurement, George J. Annas, Michael A. Grodin

Faculty Scholarship

When Renee Fox, medical sociologist and noted historian of organ transplantation, first learned of the proposal to use "non-heart-beating cadavers" as organ sources more than 25 years ago, she was appalled. She labeled the proposal "the most elaborately macabre scheme for obtaining organs that I have encountered," adding that "it borders on ghoulishness." She saw the procedure as "beyond the pale of the medically decent, morally allowable, and spiritually acceptable" (Fox 1993, 232). But medically decent has seldom gotten in the way of procuring organs for transplant, and we now seem to be on the verge of adopting an "uncontrolled" …

Confidentiality Of Chancery Documents, Patrick F. Geary

The Catholic Lawyer

No abstract provided.

Maintaining Competency Among Lawyers: How Far Have We Come?, Jerri D. Gilbreath

The Catholic Lawyer

No abstract provided.

On The Ethics Of Lawyers, Peter J. Riga

The Catholic Lawyer

No abstract provided.

The Corporate Attorney-Client Privilege In The Federal Courts, Allen A. Hans

The Catholic Lawyer

No abstract provided.

New Horizon Kids Quest Iii, Inc., V. The Eighth Judicial District Court Of The State Of Nevada, 133 Nev., Adv. Op. 409 (Apr. 6, 2017), Andrew Clark

Nevada Supreme Court Summaries

Under the Nev. Rule of Professional Conduct 1.9(b), an attorney whose former firm represented a now adverse client, may be disqualified only when the attorney actually obtained confidential, adverse information while employed by the former firm.

Gender As A Variable In Natural-Language Processing: Ethical Considerations, Brian N. Larson

Faculty Scholarship

Researchers and practitioners in naturallanguage processing (NLP) and related fields should attend to ethical principles in study design, ascription of categories/variables to study participants, and reporting of findings or results. This paper discusses theoretical and ethical frameworks for using gender as a variable in NLP studies and proposes four guidelines for researchers and practitioners. The principles outlined here should guide practitioners, researchers, and peer reviewers, and they may be applicable to other social categories, such as race, applied to human beings connected to NLP research.

Corporations And Human Life, Frank Partnoy

Seattle University Law Review

In Part I, I address decision-making. How should risk to human life be included in the jurisprudence of corporate decision-making? In terms of finance, how should corporations make net present value decisions when risk to human life is a factor? In terms of law, is there a case for exceptions to the business judgment rule based on risk to human life? Second, in Part II, I address oversight. How should risk to human life be included in the jurisprudence of oversight? In terms of finance, how should corporations approach risk management when human life is a factor? In terms of …

Social Enterprise And Investment Professionals: Sacrificing Financial Interests?, J. Haskell Murray

Seattle University Law Review

Over the past decade, more than three dozen jurisdictions in the United States passed some form of social enterprise legislation. Social enterprise statutes allow for the formation of for-profit entities that expressly require directors to consider the interests of corporate constituents beyond merely shareholders. Proponents of these social enterprise statutes argue that such statutes are needed because traditional corporate law prevents sacrificing the financial interests of shareholders in the interest of a broader social good, or in the interest of other stakeholders. Recently, social enterprises have started exploring public markets and showing up on the radar of investment professionals, including …

Berle Viii: Benefit Corporations And The Firm Commitment Universe, Bart Houlahan, Andrew Kassoy, Jay Coen Gilbert

Seattle University Law Review

Benefit corporation law is a critical tool to allow private capital to be invested in a manner that creates shared and durable value for everyone. But a tool is only as good as the person who uses it. As highlighted in Rick Alexander’s essay, shareholders must understand the value of firm commitment, and, more importantly, the ultimate source of wealth for universal investors, which is thriving financial markets and a healthy, peaceful, and prosperous planet. These goals can only be attained and maintained for the long term if private capital is allocated and invested in a manner that creates value …

Saving Investors From Themselves: How Stockholder Primacy Harms Everyone, Frederick H. Alexander

Seattle University Law Review

We face many tough issues including poverty, climate change, social and economic inequality, the cost and quality of education and healthcare, stagnant wages, financial market instability, disease, and food security. Despite the existential threat that these concerns may raise, there is no consensus on whether or how to address them through regulation, taxation, or other government policy tools. Private enterprise, however, has tremendous potential to address these issues through technology, wages, supply chain maintenance, green operations, efficient delivery of goods and services, and a myriad of other outputs and outcomes. In the U.S., the potential of the private sector to …

The Rights And Wrongs Of Shareholder Rights, Will Hutton, Colin Mayer, Philippe Schneider

Seattle University Law Review

The company is a legal structure designed to bring together the different parties of a firm—its employees, investors, customers, and suppliers—in the delivery of its corporate purpose. Corporations were established as institutions with autonomous lives—self-standing, legal entities independent of those who worked, financed, and managed them. They were devices to ensure long-term commitment to shared goals and risks, with reciprocal obligations on those engaged in them. A company had to declare its purpose before earning a licence to trade. For example, the East India Company, England’s earliest public company, to issue shares to the public as permanent capital, was given …

A Necessary Social Evil: The Indispensability Of The Shareholder Value Corporation, Marc T. Moore

Seattle University Law Review

This symposium article critically evaluates the developing Post-Shareholder-Value (PSV) paradigm in corporate governance scholarship and practice with particular reference to Professor Colin Mayer’s influential theory of the corporation as a unique, long-term “commitment device.” The article’s positive claim is that, while evolving PSV institutional mechanisms such as benefit corporations and dual-class share structures are generally encouraging from a social perspective, there is cause for skepticism about their capacity to become anything more than a niche or peripheral feature of the U.S. public corporations landscape. This is because such measures, despite their apparent reformist potential, are still ultimately quasi-contractual and thus …

Repricing Limited Liability And Separate Entity Status, William H. Clark Jr., D. Alicia Hickok

Seattle University Law Review

In this Article we discuss how U.S. entity law has evolved in recent decades so that (i) limited liability has become available to the owners of any form of business organization, and (ii) all forms of business organizations are now seen as having the status of entities separate from their owners. Those changes have occurred without significant consideration of their consequences or what they mean for the public policies underlying entity law. At the same time, there is an increasing awareness by businesses that promotion of social benefits and/or reduction of externalities is in the firm’s best interests. There has …

Assessing The Assessment: B Lab’S Effort To Measure Companies’ Benevolence, Michael B. Dorff

Seattle University Law Review

For benefit corporations to persuade their various audiences that they are as beneficial for society as they claim, they need reliable assessments of their social performance. Even if assessments were not required by most states’ benefit corporation statutes, it is difficult to imagine the benefit corporation form could gain credibility without them. Creating measurement tools for these assessments poses the twin challenges of balancing simplicity against validity and weighing vision against inclusiveness. This article examines how B Lab’s popular assessment tool engages these challenges.

Corporate Purpose And Litigation Risk In Publicly Held U.S. Benefit Corporations, Joan Macleod Heminway

Seattle University Law Review

With the likely prospect of publicly held U.S. benefit corporations in mind, this Article engages in a thought experiment. Specifically, the Article views the publicly held U.S. benefit corporation from the perspective of litigation risk. It first situates, in Part I, the U.S. benefit corporation in its structural and governance context as an incorporated business association. Corporate purpose and the attendant managerial authority, responsibilities, and fiduciary duties are the key points of reference. Then, in Part II, the Article seeks to identify and describe the salient, unique litigation risks that may be associated with publicly held corporations with the structural …

A Critical Canadian Perspective On The Benefit Corporation, Carol Liao

Seattle University Law Review

Part I of this Article provides a brief background and description of the American benefit corporation. Part II then delineates the Canadian model of corporate law and governance as it currently stands in the statutes, common law, and in practice. Part III applies the information gathered from the previous two sections to explain why the legal features in the American benefit corporation model are largely redundant to existing Canadian corporate laws. It also addresses how the implementation of the benefit corporation in Canada would conflate incorrect assumptions on Canada’s model of governance and potentially impede the progressive development of Canada’s …

Benefit Corporations And Public Markets: First Experiments And Next Steps, Brett H. Mcdonnell

Seattle University Law Review

Part I begins by considering the leading benefits and costs for a benefit corporation that chooses to go public. It starts there both to begin gaining an understanding of the challenges public companies will face and also to consider whether going public is likely to actually be an attractive option at all for some set of social enterprises. Some of the benefits and costs of going public are the same for benefit corporations as for ordinary corporations—access to new sources of capital and new accountability mechanisms are benefits, but legal compliance and pressures from shareholders to show quick results are …

Financing The Benefit Corporation, Dana Brakman Reiser, Steven A. Dean

Seattle University Law Review

The hybrid organizational forms designed with social enterprises in mind have proven to be hothouse flowers. Flourishing in state legislatures, even those with the most distinguished pedigrees—such as Delaware’s public benefit corporation—have so far failed to thrive in the marketplace. Fortunately, hybrid financial instruments offer a source of strength and stability that can help social enterprise to take root. This Article examines the valuable role that financial instruments can play in providing social enterprises with the capital they need to grow. Debt with equity features and equity with debt characteristics constitute the lion’s share of such financial tools. More exotic …

A Conversation With B Lab, Larry Hamermesh, Bart Houlahan, Rick Alexander, Dan Osusky

Seattle University Law Review

This is the panel of people who have been associated with B Lab for various lengths of time, but who really can put practical vision and facts before us in a way that the papers we’ve heard so far, while all really interesting, can’t quite do. All of these papers converge on this subject: what actually happens and what’s happened so far. So what I’m going to do is try to lead us through what could be an oral history, if it’s appropriately recorded, of B Lab. And thanks in large part to Rick Alexander, who knows the inside story …

In Pursuit Of Good & Gold: Data Observations Of Employee Ownership & Impact Investment, Christopher Geczy, Jessica S. Jeffers, David K. Musto, Anne M. Tucker

Seattle University Law Review

A startup’s path to self-sustaining profitability is risky and hard, and most do not make it. Venture capital (VC) investors try to improve these odds with contractual terms that focus and sharpen employees’ incentives to pursue gold. If the employees and investors expect the startup to balance the goal of profitability with another goal—the goal of good—the risks are likely to both grow and multiply. They grow to the extent that profits are threatened, and they multiply to the extent that balancing competing goals adds a dimension to the incentive problem. In this Article, we explore contracting terms specific to …

Balancing The Governance Of Financial Institutions, David Min

Seattle University Law Review

Part I briefly describes the traditional agency–cost approach to corporate governance and the rationale that is offered for elevating the agency–cost concerns of shareholders over those of other stakeholders (especially creditors). But as Part I goes on to argue, even if this justification for shareholder primacy is convincing in corporate governance generally (and there are many who do not find it so), several unique characteristics of banks obviate the reasoning behind shareholder primacy. Banks are highly leveraged, which exacerbates creditor–shareholder agency conflicts and places greater importance on the interests of creditors. Banks enjoy government guarantees, and thus their corporate governance …

Redefining Corporate Purpose: An International Perspective, Afra Afsharipour

Seattle University Law Review

This comparative analysis of India’s move toward redefining corporate purpose proceeds as follow. Part I presents an overview of global debates over corporate purpose, drawing principally from the move toward the ESV model in the U.K. and benefit corporations in the U.S. This section briefly recounts the debates in both jurisdictions about whether the changes they have experienced will engender more socially responsible corporations. Part II then provides a condensed history of corporate law reforms in India and an overview of the legislative changes undertaken in the past decade. In Part II, this Article takes a broad approach toward analyzing …

The Professional, Spring 2017, 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.

The Impact Of Recent Sec Financial Reporting Probes On Shareholder Wealth: Companies, Competitors, And Consequences, Stephen Warde

Honors Projects in Finance

During an undergraduate college career, an accounting major devotes a great part of his or her time to learning how publicly traded businesses prepare financial statements in compliance with Generally Accepted Accounting Principles (GAAP) and federal securities laws. These accounting principles, standards, and procedures are ultimately enforced by the U.S. Securities and Exchange Commission (SEC) to protect investors, uphold fair markets, and promote public trust in the capital market system. To fulfill its mission, the SEC Division of Enforcement conducts investigations into possible violations of the federal securities laws and administers enforcement actions. Naturally, SEC investigations and the anticipation of …

The Unifying Power Of Education, Keagan Potts, Jenji Learn

Center for the Study of Ethics in Society Papers

• Without Expertise or Experience: Philosophizing When Your Students Know You Know Nothing
• Segregated Students — Segregated Society: The Primacy of Education in Ending Hate
• Combatting Emerging Resegregation: Teaching Those in Power to Empower

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.

Marking The Path From Law Student To Lawyer: Using Field Placement Courses To Facilitate The Deliberate Exploration Of Professional Identity And Purpose, Timothy W. Floyd, Kendall L. Kerew

Faculty Publications By Year

No abstract provided.

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 …

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.