Legal Ethics and Professional Responsibility Commons^™

No More Click? Click In Here: E-Mediation In Divorce Disputes-The Reality And The Desirable, Dafna Lavi

Cardozo Journal of Conflict Resolution

This Article deals with the relatively innovative field of e-Mediation (also known as "online mediation" or "cyber mediation") as used for the resolution of divorce disputes. The first part of the Article surveys the framework and background of the development of eMediation, its implementation, its advantages and disadvantages, focusing on the field of divorce disputes. It includes insights regarding the proven need for the development of alternative dispute resolution processes for such disputes, and the great potential inherent in the model of e-Mediation to address many of the problems typically accompanying such disputes.

In view of the urgency of the …

Death By Discovery, Delay, And Disempowerment: Legal Authority For Arbitrators To Provide A Cost-Effective And Expeditious Process, Tracey B. Frisch

Cardozo Journal of Conflict Resolution

Whether warranted or not, despite statistics to the contrary, arbitration in recent years has become a punching bag for criticism that it has begun to mirror the type of scorched earth discovery practices and delays seen in litigation. Why is this? Is it because parties are not actively participating in the arbitration process and instead have allowed their outside counsels to use the litigationstyle discovery and delay tactics with which counsel feel most comfortable? Maybe. Do parties themselves want protracted discovery and a drawn out arbitration process? Some, perhaps. Has arbitration become a victim of its own success, attracting more …

Chaidez V. United States - You Can't Go Home Again, Aram A. Gavoor, Justin M. Orlosky

Notre Dame Journal of Law, Ethics & Public Policy

This article examines a 2013 Supreme Court decision, Chaidez v. United States, in which the Court declined to apply retroactively another recent decision, Padilla v. Kentucky. To many observers, Chaidez appears to be a discrete departure from previous Sixth Amendment right to counsel jurisprudence. On a personal level, noncitizens who pled guilty to a crime without being apprised of the plea’s removal risks are now unable to seek redress under Padilla and return to their homes in the United States. This article examines relevant Sixth Amendment and retroactivity jurisprudence and proposes an explanation for the Court’s apparent aboutface.

Debates Recientes Sobre La Reglamentación De La Conducta Profesional, 84 Rev. Jur. U.P.R. 955 (2015), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Introducción A Una Discusión Sobre El Futuro De La Reglamentación De La Profesión Legal En Puerto Rico, 84 Rev. Jur. U.P.R. 947 (2015), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Defending Data, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

Defending Data proposes a data-driven, systems-based approach to improving public defense in America.

Public defenders represent millions of defendants every year. Yet, public defense remains a largely data-less enterprise, a black box of discretionary decisions disconnected from any systemic analysis about the relationship between defender practices and case outcomes. Defending Data adopts a novel approach to the crisis of public defense. Building off of the successful implementation of system-based approaches in other complex, high-risk industries such as aviation and medicine, Defending Data explains how defenders can develop a data-driven systems approach to public defense.

Defending Data begins by describing the …

A No-Fault Remedy For Legal Malpractice?, Melissa Mortazavi

Faculty Articles

No abstract provided.

Mitigating Foul Blows, Mary N. Bowman

Georgia Law Review

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary. Cognitive bias research illuminates the reasons for, and …

But What Can We Do? How Juvenile Defenders Can Disrupt The Schoolto-Prison Pipeline, Jonathon Arellano-Jackson

Seattle Journal for Social Justice

No abstract provided.

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

Scholarly Works

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, …

Call To The Texas Legislature: The Franchise Tax Needs Substansive Changes, Not Just Rate Reductions., Alyson Outenreath

St. Mary's Law Journal

Abstract Forthcoming.

Further Developments In Land Use Ethics, Patricia E. Salkin, Darren Stakey

Scholarly Works

Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma mater, to the outright bribery of a former mayor, the past year has been rife with a range of conduct implicating professional responsibility and land use.

Risk, Uncertainty, And "Super-Risk", José Luis Bermúdez, Michael S. Pardo

Notre Dame Journal of Law, Ethics & Public Policy

Risk is a pervasive feature of law and public policy. Decision-making in these domains often takes place in the absence of certainty and with awareness that errors may be made and predictions may fail. Within law—as within the social and physical sciences, medicine, economics, finance, and countless other domains—a primary focus of practical and scholarly inquiries is the extent to which risks can be measured and managed. In each of these domains, risk analysis typically employs the basic tools of decision theory (probability and utility) to measure the likelihood as well as the costs and benefits associated with possible outcomes. …

Applying Lessons From The Opioid Abuse Epidemic To Protect Consumers From Gray Market Biologics, Michael C. Barnes, Stacey L. Worthy

Notre Dame Journal of Law, Ethics & Public Policy

lmost 17,000 people die per year of overdoses involving prescription opioids, controlled substances prescribed to treat pain and addiction. As such, the Centers for Disease Control and Prevention (“CDC”) has deemed prescription drug abuse a national epidemic. In addition to opioids, several other classes of prescription medications have become prone to abuse, including stimulants and benzodiazepines. As many as twenty percent of college students have used stimulants at some point in their studies for nonmedical use, and the number of admissions to substance abuse treatment programs for benzodiazepine use nearly tripled between 1998 and 2008. And in 2011, benzodiazepines caused …

A Prescription For The Future: Reverse-Payment Settlements In The Wake Of Ftc V. Actavis Pharmaceuticals, Audra J. Passinault

Notre Dame Journal of Law, Ethics & Public Policy

The pharmaceutical industry is a large and important part of the overall health care system in the United States. Drug innovation and improvement lead to safer and more effective pharmaceuticals able to treat a variety of diseases and ailments. But the quest by pharmaceutical companies to develop the next successful drug is an expensive venture: pharmaceutical companies spend more on research and development, relative to sales revenue, than almost any other industry in the United States. However, this innovation and investment is rewarded when the drug is granted a patent by the United States government, giving the developing company a …

Legal Myths Of Ebola Preparedness And Response, James G. Hodge Jr.

Notre Dame Journal of Law, Ethics & Public Policy

In March 2014, Ebola viral disease (“EVD”) emerged from several

West African countries as a substantial threat to global health.

Through a series of core legal powers pursuant to its declaration of a

public health emergency of international concern (“PHEIC”) on

August 8, 2014, the World Health Organization (“WHO”) averted a

global health disaster by requiring member countries to engage in mul- tiple public health interventions. These efficacious WHO-mandated

measures included implementation of border closures to limit the

spread of EVD within and outside of countries like Guinea, Liberia,

Senegal, and Sierra Leone. Industrialized nations, including the

United States, responded …

The Need For Conditions Limiting The Use Of Legislative History In Statutory Interpretation: Lessons From The British Courts, Sylvia Costelloe

Notre Dame Journal of Law, Ethics & Public Policy

Statutory interpretation is of crucial importance for both lawyers and judges. A notably fertile source of debate is the use of legislative history for purposes of statutory interpretation, which gained particular momentum in the past century. Proponents of the use of legislative history in statutory interpretation argue that it is a valuable tool for interpreting ambiguous statutes. On the other hand, opponents such as Justice Scalia have argued that the only law that should govern is that which has been passed by a majority of the House and the Senate. The debate among American judges and scholars has largely centered …

Addressing Barriers To Cultural Sensibility Learning: Lessons From Social Cognition Theory, Andrea A. Curcio

Faculty Publications By Year

Understanding subconscious biases, their pervasiveness, and their impact on perceptions, interactions, and analyses, helps prepare lawyers to represent people from cultural and racial backgrounds different from their own, and to address both individual and institutional injustice. Two law student surveys suggest many students believe lawyers are less susceptible than clients to having, or acting upon, stereotypes or biases. The survey results also indicate that many students suffer from bias blind spot – i.e. they believe that while others cannot recognize when they are acting based upon stereotypical beliefs and biases, the students know when they are doing so. The survey …

The State Of Recusal Reform, Charles G. Geyh, Myles Lynk, Robert S. Peck, Toni Clarke

Articles by Maurer Faculty

No abstract provided.

Kill The Dinosaurs, And Other Tips For Achieving Technical Competence In Your Law Practice, Antigone Peyton

Richmond Journal of Law & Technology

It is a challenge to practice law in the digital age. This is particularly true when a practice involves significant e-Discovery, Intellectual Property, and technology law—areas in which technical issues merge with legal ones. One of the major challenges of bringing a law practice up to twenty-first-century standards relates to dinosaur thoughts, a.k.a. an “old ways are best” mentality.

Beyond Technophobia: Lawyers’ Ethical And Legal Obligations To Monitor Evolving Technology And Security Risks, Timothy J. Toohey

Richmond Journal of Law & Technology

Lawyers and technology have an uneasy relationship. Although some lawyers are early adapters, others take pride in ignoring technology because they believe it is alien to the practice of law. As Jody R. Westby observed, lawyers confronted with technology and security issues tend to have their “eyes glaze over” and “want to call in their ‘IT guy’ and go back to work.” But this technophobic attitude may no longer just be harmless conservatism. In the world of growing security risks, ignorance of technology may lead to violations of lawyers’ fundamental ethical duties of competence and confidentiality.

Abortion And Compelled Physician Speech, David Orentlicher

Scholarly Works

No abstract provided.

Legal Ethics And Data Security: Our Individual And Collective Obligation To Protect Client Data, Drew Simshaw

Scholarly Works

New technologies are drastically changing the way lawyers practice law. Advances in areas such as cloud computing and mobile devices are enabling new ways to communicate with clients, as well as new ways to collect, store, and manage data pertaining to their cases. This Article provides practitioners with the necessary tools to fulfill their ethical obligation to protect client information in an increasingly digitized world.

Advocacy As An Exercise In Virtue: Lawyering, Bad Facts, And Furman's High-Stakes Dilemma, Linda H. Edwards

Scholarly Works

Two of the conversations benefitting most from Jack Sammons's scholarship are conversations about legal rhetoric and about virtue ethics. Legal rhetoric is the study of the conventions of legal argument, specifically, the art of identifying and evaluating the best available means of persuasion and implementing those means effectively in light of audience, purpose, and occasion. Virtue ethics approaches moral reflection by asking what sort of person a particular moral choice encourages the actor to become. It focuses on consequences to the moral agent herself rather than directly focusing on consequences to others. The goal is to become a virtuous person, …

A Rhetorician’S Practical Wisdom, Linda L. Berger

Scholarly Works

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

Blind Spot: The Inadequacy Of Neutral Partisanship, Melissa Mortazavi

Faculty Articles

No abstract provided.

The Michael Morton Act: Minimizing Prosecutorial Misconduct., Cynthia E. Hujar Orr, Robert G. Rodery

St. Mary's Law Journal

Twenty-five years ago, Texas prosecutors significantly limited the pre-trial discovery it disclosed to criminal defendants. As a result of this policy, innocent individuals accused of murder, like Michael Morton, were denied their right to due process. Michael Morton was incarcerated for twenty-five years following a wrongful murder conviction. He was denied access to crucial evidence, which included a bandana with the victim’s blood and the killer’s hair, and eyewitness accounts describing the killer at or near the time of the murder. The prosecutor purposely withheld this evidence from Michael Morton; but thanks to the efforts of the Innocence Project, he …

Potential Tort Liability For Personal Use Of Drone Aircraft., Benjamin D. Mathews

St. Mary's Law Journal

In the United States, the use of personal drones has become more prevalent. Businesses now use drones to deliver products to consumers. Consumers now use drones to video and photograph special events. As a result, new laws are needed concerning personal usage of drones. The number of drone sales is predicted to double by 2024. This is reflected by companies such as Parrot, a vendor of private drones, who in the first quarter of 2014 sold 670,000 drones. Citizens whose personal liberties have been infringed upon by another individual’s use of personal drones, often resort to common law torts because …

Hamrick V. Ward: Clarifying Implied Easement Law., Courtney R. Potter

St. Mary's Law Journal

Abstract Forthcoming.

Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees., George P. Roach

St. Mary's Law Journal

Abstract Forthcoming.