Legal Ethics and Professional Responsibility Commons^™

Joining Forces In Search For Answers: The Use Of Therapeutic Jurisprudence In The Realm Of Mediation Ethics , Omer Shapira

Pepperdine Dispute Resolution Law Journal

The Mediation process is part of the Alternative Dispute Resolution movement (ADR) whose modern history begins at the end of the 1970s. Therapeutic Jurisprudence (TJ) is a younger movement which has started to gain recognition in the 1990s. The two schools of thought share similarities, a fact which makes their study beneficial for both. This article explores some of those similarities in order to evaluate the possible contribution of TJ to mediation ethics. What is sought is a normative reading of the mediation process with the aid of the therapeutic lens. Such reading suggests, so it is argued, behavioral guidelines …

A Call To Action: A Client-Centered Evaluation Of Collaborative Law, Alexandria Zylstra

Pepperdine Dispute Resolution Law Journal

This paper will first examine the process of collaborative law, from deciding to hire a collaborative lawyer to the disqualification agreement, as well as identifying potential dangers for the client, including an analysis of collaborative law utilizing the negotiation theory of Roger Fisher and William Ury's book Getting to Yes. The second part of the paper will examine how collaborative law literature evaluates and critiques the costs and benefits of collaborative law. This paper ultimately finds that the cost-benefit analysis either stems from small, non-controlled studies or personal anecdotes, or discussions of whether collaborative law complies with ethics rules, …

The Disempowering Relationship Between Mediator Neutrality And Judicial Impartiality: Toward A New Mediation Ethic, Ronit Zamir

Pepperdine Dispute Resolution Law Journal

The issue I shall discuss in this article is whether the concept of mediator neutrality advances the empowering and effective participation of parties from disadvantaged groups. Section II will deal with the relationship between the concept of neutrality in the adversarial legal process, in the mediation process, and the concept of procedural justice. I shall then present the meanings ascribed to the concept of mediator neutrality in the two prevailing models of mediation: the problem-solving model and the transformative model. The affinity between these meanings and the concept of judicial impartiality will be discussed and critiqued. Finally, I shall suggest …

The Truth Shall Set You Free: A Distinctively Christian Approach To Deception In The Negotiation Process, Al Sturgeon

Pepperdine Dispute Resolution Law Journal

This paper examines whether the Christian religion offers a distinct position on the use of deception in the negotiation process. It is expected to be of primary interest to Christian negotiators, but combining the popularly understood theorem that "everyone negotiates on some level" with the fact that there are over 173 million Christian adherents in the United States alone, the topic may be of general interest to anyone who negotiates. There is apparently neither an official nor a widespread recognition of a distinct Christian position on the use of deception in negotiation at present. It is this article's proposal, however, …

Teaching The Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, A Defining Features Matrix, Games, And An Exercise Based On Grievances Filed Against Florida Mediators , Paula M. Young

Pepperdine Dispute Resolution Law Journal

Teaching Professional Ethics to Lawyers and Mediators Using Active Learning Techniques will serve as the first article in a series of articles I have planned on the use of active learning techniques to teach the core values of mediation: mediator impartiality, party self-determination, confidentiality, and quality of the process/mediator competence. This article is the second article in that series. In Section III, I summarize the first article in the series. In Section IV, I describe the role of mediator impartiality as a core value of the mediation field. I evaluate the definitions of mediation found in several ethics codes as …

Collaborative Practice's Radical Possibilities For The Legal Profession:"[Two Lawyers And Two Clients] For The Situation" , Robert F. Cochran Jr.

Pepperdine Dispute Resolution Law Journal

This article will consider the two dramatic changes that collaborative practice [CP] brings to law practice: a change in the mental attitude of lawyers and clients toward the conflict and a change in lawyers' counseling techniques. Part II defines CP and compares it to traditional negotiation-pending-litigation. Part III considers the change in attorney and client mental attitudes wrought by CP, where both lawyers and clients take responsibility for identifying a resolution that will meet the needs of all of the parties. Part IV considers the type of client-counseling that is often generated by CP-lawyers in CP may strongly encourage clients …

Is There A "Higher Law"? Does It Matter?, Connie S. Rosati

Pepperdine Law Review

No abstract provided.

Ethics: The Evils Of Email, Lindsay K. Bell

Annual of the Arkansas Natural Resources Law Institute

No abstract provided.

Legal Ethics Is About The Law, Not Morality Or Justice: A Reply To Critics, W. Bradley Wendel

Cornell Law Faculty Publications

In this brief response I address critiques of my book, Lawyers and Fidelity to Law, in the Texas Law Review by Tony Alfieri, Kate Kruse, David Luban, Steve Pepper, and Bill Simon. Although the critical response varies in detail, in general one can understand our differences using H.L.A. Hart's idea of an opposition between the nightmare and the noble dream of some practice or institution. A theory of law or legal ethics may be animated by a fear that a different approach is the road to some imagined hell, and I think this metaphor helps explain some of the points …

Some Too (Or Blessedly) Short Responses To Five Thoughtful Readers, Sanford Levinson

Pepperdine Law Review

No abstract provided.

Levinson Is To Mr. Justice "Isaiah" As St. Paul Was To The Prophet Isaiah, Richard H. Weisberg

Pepperdine Law Review

No abstract provided.

The Variable Morality Of Constitutional (And Other) Compromises: A Comment On Sanford Levinson's Compromise And Constitutionalism, Carrie Menkel-Meadow

Pepperdine Law Review

This comment to Sanford Levinson's Brandeis lecture at Pepperdine focuses on the role and types of compromises made during several stages of constitutional processes, formative and constitutive, interpretive and on-going, as negotiated by Constitutional meaning makers (drafters and Supreme Court 'deciders'), and post hoc justifications. This essay discusses recent work on compromise as institutional design, pragmatic or principled, and regime defining and sustaining. Both the pejorative (compromise is unprincipled) and more positive (compromise accounts for the 'reality' and moral existence of different sides of an issue or polity) understandings of compromise are reviewed, in light of Professor Levinson's scholarship on …

Lessons From Lincoln: A Comment On Levinson, Steven D. Smith

Pepperdine Law Review

No abstract provided.

Compromise And Constitutionalism, Sanford Levinson

Pepperdine Law Review

Professor Levinson explores compromises (1) that went into the making of the United States Constitution, and (2) that have occurred in the Supreme Court's constitutional interpretation. He explores these compromises in light of Israeli philosopher Avishai Margalit's distinction between bad compromises and rotten compromises. "Rotten compromises" are indefensible except, perhaps, in the most exceptional of conditions. A "rotten political compromise" is one that agrees "to establish or maintain an inhuman regime, a regime of cruelty and humiliation, that is, a regime that does not treat humans as humans." Under this standard, Levinson identifies as rotten compromises the Constitution's protection of …

The Cost Of Compromise And The Covenant With Death, Paul Finkelman

Pepperdine Law Review

This article is a rebuttal to the writings of those advocating the view that America was formed through compromise and that compromise in modern constitutional law is, therefore, necessary and beneficial. A recount of the “compromises” at the Constitutional Conventional that eventually led to the approval and protection of slavery begins the analysis establishing the danger of Americans compromising over constitutional protections. The article continues on, discussing the Compromise of 1850 and its drafters whom others have considered “passionately devoted to the Union”, like John Calhoun, who would later assert that the Constitution was expendable. The Compromise of 1850 did …

Introduction: Blessed Are The Compromisers?, Robert F. Cochran Jr.

Pepperdine Law Review

No abstract provided.

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Pepperdine Law Review

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

Corporate Lawyers After The Big Quake: The Conceptual Fault Line In The Professional Duty Of Confidentiality, Thomas G. Bost

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Codes Of Ethics And State Fiduciary Duties: Where Is The Line?, Z. Jill Barclift

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Execution In Virginia, 1859: The Trials Of Green And Copeland, Steven Lubet

Faculty Working Papers

This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown's raid on Harper's Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a …

Adolescent Medical Decision Making And The Law Of The Horse, Amanda C. Pustilnik, Leslie Meltzer Henry

Faculty Scholarship

Legal and ethical regimes relating to adolescent medical decision making resemble what Judge Frank H. Easterbrook derisively called “the Law of the Horse”: Many laws deal with horses, he wrote, but there is no such field as “horse law.” Similarly, even though the United States has juvenile and family courts, as well as pediatric and adolescent medical departments, there is not a distinct field of “adolescent medical decision-making law” or ethics; there are just many disparate policies that implicate or impinge upon decisions made by adolescents. These include state laws ranging from those that permit minors to seek treatment for …

Advance Consent To Aggregate Settlements: Reflections On Attorneys' Fiduciary Obligations And Professional Responsibility Duties, Carol A. Needham

Loyola University Chicago Law Journal

No abstract provided.

Blaming As A Social Process: The Influence Of Character And Moral Emotion On Blame, Janice Nadler

Faculty Working Papers

For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor's mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our …

Corrupt Intentions: Bribery, Unlawful Gratuity, And Honest-Services Fraud, Alex Stein

Faculty Scholarship

No abstract provided.

The Professional, Winter 2012, 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.

Law As A Profession: Examining The Role Of Accountability, Susan Saab Fortney

Fordham Urban Law Journal

No abstract provided.

Legal Writing, The Remix: Plagiarism And Hip Hop Ethics, 63 Mercer L. Rev. 597 (2012), Kim D. Chanbonpin

UIC Law Open Access Faculty Scholarship

In this Article, I focus on hip hop music and culture as an access point to teach first-year law students about the academic and professional pitfalls of plagiarism. Hip hop provides a good model for comparison because most entering students are immersed in a popular culture that is saturated with allusions to hip hop. As a point of reference for incoming law students, hip hop possesses a valuable currency as it represents something real, experienced, and relatable.

Significant parallels exist between the cultures of United States legal writing and hip hop, although attempting direct analogies would be absurd. Chief among …

Jan. 1, 2012, Performance Standard 1, Ifc

IFC E&S Performance Standards

No abstract provided.

Cloudy With A Chance Of Waiver: How Cloud Computing Complicates The Attorney-Client Privilege, 46 J. Marshall L. Rev. 383 (2012), Timothy Peterson

UIC Law Review

No abstract provided.

Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams

Faculty Publications

In a recent high-profile prosecution, the federal district court criticized defense counsel for filing a post-trial brief that copied passages from previously published material without attribution. The court followed other recent decisions that, since about 2000, have chastised lawyers for briefs marked by plagiarism. Some lawyers had copied passages from earlier judicial opinions that rest in the public domain, and some lawyers (as in the recent prosecution) had copied passages from private sources that are subject to the copyright laws. In either event, courts have labeled lawyers’ plagiarism “reprehensible,” “intolerable,” “completely unacceptable,” and “unprofessional.”