Legal Ethics and Professional Responsibility Commons^™

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.

Bridging Rule Of Law Theory And Implementation: The Role Of Professional Ethical Integrity,, Kate Bloch

Faculty Scholarship

No abstract provided.

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

Sampling And Reliability In Class Action Litigation, Hillel J. Bavli

Cardozo Law Review de•novo

In this Article, I explain my conclusions in Aggregating for Accuracy in non-mathematical terms, and underscore certain implications with respect to class action litigation and considerations in light of the U.S. Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo. I begin by describing the building blocks of my analysis—the concepts of reliability and accuracy in the law.

Said I, 'But You Have No Choice': Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi M. Weinstein

Cardozo Public Law, Policy & Ethics Journal

The article argues that lawyers representing individuals with mental disabilities have an ethical responsibility to prioritize their clients' expressed preferences and autonomy, rejecting the presumption that substituted decisionmaking is acceptable. It critiques the legal system's reliance on paternalistic approaches and highlights the importance of supported decisionmaking, as mandated by international human rights law, particularly under the Convention on the Rights of Persons with Disabilities (CRPD). The analysis emphasizes the need for legal frameworks and attorney practices to align with therapeutic jurisprudence, which prioritizes psychological well-being and dignity while upholding due process principles.

Introduction, Forrest S. Mosten

Cardozo Journal of Conflict Resolution

This special edition of the Cardozo Journal of Conflict Resolution reflects the current exciting state of the Family Dispute Resolution field, inside and outside of the law school academy. The articles selected for this portion of the issue carry on the vibrant dialogue that took place at the Cardozo Journal of Conflict Resolution's Annual Symposium "All in the Family: Intimate Parties, Intimate Issues and ADR". This Symposium, hosted at the Benjamin N. Cardozo School of Law on October 19, 2015, engaged scholars, practitioners, and students from across the country.

Gender Bias In The Courtroom: Challenges Confronting Women Litigators And Trial Attorneys, Connie Lee

Student Articles and Papers

This paper examines the gender biases that women trial attorneys and litigators confront in the legal profession. Specifically, this paper analyzes how such biases undermine our legal system by attacking principles of fairness and equity and, consequently, jeopardizing the client's opportunity to be heard and access fair court proceedings.

The Rule Of Law And Ethical Integrity: Does Haiti Need A Code Of Legal Ethics?, Kate Bloch, Roxanne Edmond-Dimanche

Faculty Scholarship

No abstract provided.

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

Scholarly Works

Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

George Zimmerman, Jerry Sandusky, And The Ethics Of Counsel’S Use Of The Media, Wesley M. Oliver, Rebecca L. Silinski

Oklahoma Law Review

The media is both a tool and a temptress for the modern lawyer. With interest in trials increasing, particularly criminal trials, lawyers are frequently invited to become part of the media’s coverage. The media provides lawyers an opportunity to tell their clients’ stories, but it also brings a type of fame to the attorney, which may bias the lawyer’s view of the wisdom of the coverage. The American Bar Association’s (ABA) Model Rules of Professional Conduct (Model Rules) have long recognized that a lawyer’s interest in the literary and media rights to the client’s story potentially compromises the client’s representation. …

Internet Ethics, American Law, And Jewish Law: A Comparative Overview, Samuel J. Levine, Gertrude N. Levine

Scholarly Works

Societies are governed by codes of ethics. In developed societies, parts of these codes form a set of laws, enforceable by legal authorities, with or without assistance from the populace. At times, laws are crafted for the benefit of the powerful members of the society, ensuring preservation of their positions and property, while other constituents may ignore, actively disobey, or challenge laws they believe do not support their ethics. Developing and maintaining appropriate social norms is thus particularly critical for sustaining rapidly changing heterogeneous populaces.

The Internet, devised for the purpose of interconnecting diverse computer networks of research and educational …

The Prosecutor's Duty To "Imperfect" Rape Victims, Tamara Rice Lave

Articles

No abstract provided.

Probable Cause Revisited, William Ortman

Law Faculty Research Publications

No abstract provided.

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is an emerging consensus, however, that children in dependency cases should have lawyers and those lawyers should be as active and as involved in their cases as are lawyers for any other party in any other litigation. Although state law and policy makers differ as to what voice the child should have in determining the direction and goals of the litigation, that is, whether the child's lawyer should represent the best interests of the child as determined by the …

The Rise And Fall Of Social Trustee Professionalism, Michael Ariens

Faculty Articles

Elite lawyers have long urged the private practice bar to account for the interests of more than their clients in their work. A lawyer who served merely as a "mouthpiece" or "hired gun" of clients failed to meet the standards of professionalism, of failing to act, in Roscoe Pound's words, "in the spirit of a public service." Pound's view, expressed in the mid-20th century, was premised on the ideal that the lawyer pursued a public calling that incidentally was remunerative. This ideal required the lawyer to serve as a social trustee, one encumbered by duties for the benefit of society. …

Front Matter

Notre Dame Journal of Law, Ethics & Public Policy

Table of Contents

Note, American, Isis, And Social Media: How The Material Support Statute Can Help Combat Against Their Collision, Morgan Stacey

Notre Dame Journal of Law, Ethics & Public Policy

In this Note, I argue that individuals who support ISIS through encouragement and participation in the recruitment process through social media fall into criminal prosecution under the statute, as they have attempted to provide material support, namely personnel, to the foreign terrorist organization. This support of ISIS through social media is not protected First Amendment speech, as the support turns into an attempt to provide personnel or finances to the group. Part I will focus on ISIS as an organization, its history, and its recruitment strategies. It will discuss ISIS's innovative use of social media for recruitment and its dangerously …

Skin In The Game: Why Business Lawsuits Get Third-Party Funded, Radek Goral

Notre Dame Journal of Law, Ethics & Public Policy

The main claim of the paper is that the changing realities of legal practice create lasting attorney-funder alliances. In effect, among a funder, a friendly law firm, and the client circle of such firm, there is not one attorney-client-funder triangle, but many; and they all revolve around the common link between the two repeat players. The emergence of "litigation funding cones" impacts the attorney-client relationship. The paper argues that in third-party funded litigation, the attorney-funder bond, often informal and confidential, may leave represented litigants in a vulnerable position. Such vulnerability is unlikely to be adequately addressed solely by contract. Therefore, …

Note, The Unconstitutionality Of The Computer Fraud And Abuse Act, Michael C. Mikulic

Notre Dame Journal of Law, Ethics & Public Policy

This Note deals with 18 U.S. C. 1030, otherwise known as the Computer Fraud and Abuse Act ("CFAA "). The CFAA is the federal computer hacking statute. This Note discusses the statute's history, purpose, and the recent circuit split regarding its interpretation. There are two ways to interpret the statute: one is broad and the other narrow. The broad interpretation, which many, if not a majority of circuit courts adopt, extends criminal liability to potentially millions of unsuspecting Americans. The approach is wholly unfair and unreasonable. But more than that, this Note argues that the broad interpretation is unconstitutional. There …

Note, Physician-Owned Distributorships, Jennifer Brougham

Notre Dame Journal of Law, Ethics & Public Policy

The physician-owned distributor ("POD") is one example of the various business entities that have materialized. In recent years, a hot debate has ensued over whether PODs are legitimate business arrangements that offer solutions, or instead exacerbate industry challenges and implicate improper conduct. This Note will assess both sides of the debate and take the position that the harms created by the existence of PODs dwarf any potential benefits. PODs create conflicts of interest and are susceptible to abuse, working against the goals of health care reform-improving quality, affordability, and accessibility. Part I of this Note will provide an overview of …