Legal Profession Commons^™

The Constitutional Duty Of A National Security Lawyer In A Time Of Terror, James E. Baker

Georgetown Law Faculty Publications and Other Works

National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001.

The National Security Process And A Lawyer’S Duty: Remarks To The Senior Judge Advocate Symposium, James E. Baker

Georgetown Law Faculty Publications and Other Works

September 11 changed so much about our lives and how we perceive national security. Harold Lasswell, in an earlier context, described the sharing of danger throughout society as the “socialization of danger,” which he wrote was a permanent characteristic of modern violence; but not for America until September 11. The socialization of danger has made ordinary citizens participants in the national security process in a way not previously experienced. In addition, it has brought relatively unknown federal agencies, like the Federal Emergency Management Agency and the Centers for Disease Control, to the forefront of national security planning and response. And …

Ordered Liberty And The Homeland Security Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

This paper will start with a brief discussion of the terrorism threat because the threat remains predicate for any serious discussion of where we draw our legal lines. I will then suggest a legal model for looking at questions of homeland security called ordered liberty. The model is simple. First, given the nature of the threat, the executive must have broad and flexible authority to detect and respond to terrorism-–to provide for our physical security. Second, the sine qua non for such authority is meaningful oversight. Oversight means the considered application of constitutional structure, executive process, legal substance, and relevant …

When Lawyers Advise Presidents In Wartime: Kosovo And The Law Of Armed Conflict, James E. Baker

Georgetown Law Faculty Publications and Other Works

The events of September 11 changed how we perceive national security as a society, a government, and as individuals. This is as true of national security specialists, who have been aware that America has been at war with terrorism sine at least the 1990s, as it is for those whose sense of geographic security was shattered in New York and Washington. There is talk of “new war” and “new rules,” and concern that we not apply twentieth-century lessons to a twenty-first-century war.

Over time, September 11 and its aftermath will test our interpretation and application of domestic law. It may …

Professional Discipline For Law Firms? A Response To Professor Schneyer’S Proposal, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Model Rule of Professional Conduct 5.1(a) requires individual partners to make "reasonable efforts" to ensure that their firm has measures in effect that give "reasonable assurance" that all lawyers in the firm conform to ethical rules. Similarly, Model Rule 5.3(a) imposes upon individual partners the obligation of making "reasonable efforts" to ensure that the firm has measures in place giving "reasonable assurance" that the conduct of non-lawyers affiliated with the firm is compatible with the partner's professional obligations. These rules were adopted to encourage firms to create firm cultures and institute prophylactic policies and procedures--an "ethical infrastructure"--that would prevent misconduct …

[Review Of] George Kaufman, The Lawyer’S Guide To Balancing Life And Work: Taking The Stress Out Of Success, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

In recent years there has been much self-examination within the legal profession. On the macro scale, Sol Linowitz, The Betrayed Profession, compares, not favorably, the profession of today with that which he knew in the early decades of his practice. Dean Anthony Kronman, The Lost Lawyer, and Mary Ann Glendon, A Nation Under Lawyers, use their skills as scholars to examine the profession on a more objective level. On the micro level, Deborah Arron led the way with Running from the Law, which tells of talented overachievers who stood out in law school and judicial clerkships, and then found large-firm …

The Zealous Advocacy Of Justice In A Less Than Ideal Legal World, Robin West

Georgetown Law Faculty Publications and Other Works

In The Practice of Justice, William Simon addresses a widely recognized dilemma -- the moral degradation of the legal profession that seems to be the unpleasant by-product of an adversarial system of resolving disputes -- with a bold claim: Lawyers involved in either the representation of private rights or the public interest should be zealous advocates of justice, rather than their clients' interests. If lawyers were to do what this reorientation of their basic identity would dictate -- that is, if lawyers were to zealously pursue justice according to law, rather than zealously pursue through all marginally lawful means whatever …

Contrived Ignorance, David Luban

Georgetown Law Faculty Publications and Other Works

Lawyers often complain that it's hard to get clients to tell them the unvarnished truth. But it can be an equal challenge to avoid facts that the lawyer really doesn't want to know. Criminal defense lawyers rarely ask their clients, "Did you do it?" Instead, they ask the client what evidence he thinks the police or prosecution have against him-whom he spoke with, who the witnesses are, what documents or physical evidence he knows about. If the client seems too eager to spill his guts, the lawyer will quickly cut him off, admonishing him that time is short and that …

Do The Haves Come Out Ahead In Alternative Justice Systems? Repeat Players In Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Marc Galanter's essay, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change (Why the "Haves" Come out Ahead), published twenty-five years ago, set an important agenda for those who care about the distributive effects of legal processes, including those of us who have been engaged in jurisprudential, intellectual, and empirical debates about the relative advantages and disadvantages of alternative and conventional legal procedures. As a document of legal intellectual history, this Article was formed in the crucible of the Legal Mobilization and Modernization program at Yale Law School that spawned so many "law and . …

Asking The Right Questions, David Luban

Georgetown Law Faculty Publications and Other Works

At this Symposium, we have heard about forms of law practice that raise large questions about the lawyer's role. My sole theme in the present essay is that we often ask the wrong large questions. Too often, the questions about multidisciplinary practice ("MDP"), mediation and arbitration, and in-house lawyering are whether they are good for lawyers and good for clients. These are questions, I will suggest, that the market itself will decide. The right question is not whether new roles with no rules are good for lawyers and clients, but rather whether they are good for the rest of us-"us" …

Ethics And Professionalism In Non-Adversarial Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Traditional notions and rules of professionalism in the legal profession have been premised on particular conceptions of the lawyer's role, usually as an advocate, occasionally as a counselor, advisor, transaction planner, government official, decision maker and in the recent parlance of one of this symposium's participants-a "statesman [sic]. '" As we examine what professionalism means and what rules should be used to regulate its activity, it is important to ask some foundational questions: For what ends should our profession be used? What does law offer society? How should lawyers exercise their particular skills and competencies?

Taking Problem Solving Pedagogy Seriously: A Response To The Attorney General, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Attorney General Janet Reno has taken seriously the notion that lawyers should make the world better than they find it, that problems should be prevented, where possible, before they occur, and that law should serve the needs of the people and deliver long-term justice. I want to suggest some concrete ways in which we can take her challenges seriously.

Independent Counsel And Vigorous Investigation And Prosecution, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This essay draws on the examples of Watergate and Iran-Contra to offer a new perspective on Independent Counsel and their ability to investigate and prosecute high-level wrongdoing. The current consensus is that an Independent Counsel, appointed by judges of the special court pursuant to the Ethics in Government Act, will invariably investigate and prosecute crimes more vigorously than a Special Prosecutor appointed by the President or the Attorney General. Watergate and Iran-Contra suggest, however, that there are institutional and political factors that make analysis of the comparative tendencies of the two types of prosecutors more complex and dependent on circumstance. …

[Review Of] Mark Perlmutter, Why Lawyers (And The Rest Of Us) Lie & Engage In Other Repugnant Behavior, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

This book speaks to the individual lawyer about his or her own practice. It is a self-confession by a leading trial lawyer of his own defalcations: of his own lies, of his own standing by as a more senior member of his law firm deliberately destroyed evidence, of his own giving a convincing argument to a court on a motion when all that he really wanted to do was delay. The stories are intriguing and captivating.

Coping With Partiality: Justice, The Rule Of Law, And The Role Of Lawyers, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Lawyers help ameliorate a particular instance of what the author calls the problem of interest--the partiality problem. For he believes that it falls to law professors to imbue in their students an understanding of the important role that lawyers play in society, if for no other reason than they will need some emotional armament from the slings and arrows of incessant lawyer jokes and worse. In explaining how the existence of lawyers helps address the problem of partiality, the author also explains how adherence to property rights, freedom of contract, and the rule of law--concepts long disparaged by law professors--help …

When Dispute Resolution Begets Disputes Of Its Own: Conflicts Among Dispute Professionals, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

As the processes comprising, alternative, or as we now say, "appropriate" dispute resolution mature and enter new phases of use, new issues have emerged to demonstrate that professionals engaged in providing dispute resolution services have disputes and conflicts among themselves. This Article reviews some of those conflicts and issues and suggests some resolutions for these disputes between dispute resolvers.

Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I begin by thanking the UCLA Law Review, and particularly Darrin Mollet and Bryce Johnson, for seeing the timeliness of the topic of alternative dispute resolution and organizing this Symposium-collecting some of the best thinkers, writers, and practitioners in the field to discuss, among other things, the economics of ADR, the role of lawyers, courts, and judges in ADR, and the application of ADR to a variety of substantive legal and regulatory problems. In this Introduction, I would like to introduce the topics and the authors, and put them in the larger context of the movement that is now called …

The Silences Of The Restatement Of The Law Governing Lawyers: Lawyering As Only Adversary Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The attempt to "restate" the law governing lawyers is a noble effort. The drafts, to date, have presented a heroic gathering, in one place, of case law and competing formulations of a variety of the professional disciplinary codes. The drafters have attempted to settle some difficult and often contentious issues regarding lawyer responsibilities to clients, to courts, to third parties, and to themselves. At the same time, this Restatement suffers from the temporal flaws of all its sisters and brothers - in its efforts to "restate" the law it looks backward, not forward, and thus will provide little guidance, at …

Objectivity In Legal Judgment, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

We are experiencing a crisis of confidence in the idea of objectivity. In scholarly circles, many are ready to discontinue talk of objectivity altogether, on the grounds that it has been nothing more than a mask for the oppressive practices of politically and economically privileged groups, promising neutrality where in fact there are only power relations. Some feminist legal scholars, some critical race scholars, and some critical legal studies scholars, along with some contemporary philosophers, argue that objectivity is inevitably a problematic, dangerous idea or ideal. Critics of objectivity sometimes argue that it can never be genuinely had, only claimed …

Culture Clash In The Quality Of Life In The Law: Changes In The Economics, Diversification And Organization Of Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

There is no question that law practice has changed in recent decades. More lawyers work in larger units or newer forms of practice. Increasing numbers of lawyers come from previously excluded groups, including both women and minority demographic groups. After a period of economic boom there is general economic anxiety about the continued health and growth of the law "industry." This occurs as there is a general "speed up" in American work, the forms of law practice organization and billing for legal work are being renegotiated, and rates of dissatisfaction with the practice of law increase, especially among younger and …

The Word On Trial, Robin West

Georgetown Law Faculty Publications and Other Works

Milner Ball's extraordinary book, The Word and the Law, begins with a narrative account of "seven practices in law." The seven practitioners Ball brings to life for the reader share two powerful traits: they all, in quite different ways, use law to lessen the multiple sufferings of various communities of poor people, and they all, by doing so, strengthen the communities within which and for which they labor. The reader gains from these accounts not only a sympathetic understanding of the lives of seven lawyers, but a renewed sense of the possibilities their practices present. This can be put any …

The Collision Between New Discovery Amendments And Expert Testimony Rules, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The young litigator's nightmare was always the same. He was in medieval Europe, ready to engage in a sword fight with the expert swordsman representing his arch rival. After countless hours of preparation, he felt confident that he would be able to hold his own against the swordsman. But when the swordsman drew his lengthy rapier from its sheath, the young attorney pulled only a short dagger from his scabbard. Realizing that he was doomed to defeat, he tossed his dagger into the air and ran from the scene with the laughter of the onlookers ringing in his ears.

The …

Foreword: Public Health & The Law—A Symposium Dedicated To Professor William J. Curran, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This essay serves as the foreword to Public Health & the Law, a symposium dedicated to Professor William J. Curran held in 1987.

During his career, Professor Curran chaired the Harvard School of Public Health Committee on Human Research; he directed the Program in Law and Public Health; and he was co-director of the Harvard Interfaculty Program in Medical Ethics from 1973 to 1980. He was also an advisor to the World Health Organization and spent two sabbatical periods in Europe with WHO organizations. He advised and lectured in countries throughout the world.

At Harvard Law School and at …

The Work-Product Doctrine: Protection, Not Privilege, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Although the work-product doctrine has received considerable attention before the courts in recent years, several issues regarding the scope and applicability of the doctrine remain controversial As a prelude to explaining the state of the law on these issues, the author examines the case law through which the doctrine developed and explores the doctrine's modern application through rule 26 of the Federal Rules of Civil Procedure. He next discusses the rule's various requirements and its treatment ofparticular categories of information including opinion work product andparty statements. Finally, Professor Cohn explains how the rule's protection may be waived and discusses the …

Review Of The New Deal Lawyers, By Peter H. Irons, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews The New Deal Lawyers by Peter H. Irons (1982).

The government lawyers who helped shape and defend New Deal agencies have received little attention from scholars. Any oversight has now, however, been redressed. The New Deal Lawyers provides a detailed and careful study of the litigation process that preceded the New Deal's 1937 court triumphs. Peter Irons' book focuses on the activities of three key agencies and their general counsels: the National Recovery Administration (NRA) and Donald Richberg; the Agricultural Adjustment Administration (AAA) and Jerome Frank; and the National Labor Relations Board (NLRB) and Charles Fahy. Each …

Multiple Representation Of Targets And Witnesses During A Grand Jury Investigation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The propriety of one attorney representing several clients whose conduct is under investigation by a grand jury has been explored only superficially by the courts and the American Bar Association's Code of Professional Responsibility. Prosecutors nonetheless have often moved to disqualify counsel representing multiple clients in recent years, basing their motions both on the client's interest in loyal and competent representation and on the government's interest in the unimpeded progress of the grand jury investigation. Professor Tague discusses the factors that counsel should consider in deciding whether to undertake multiple representation at the grand jury stage, including strategy, ethics, and …

Multiple Representation And Conflicts Of Interest In Criminal Cases, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Conflicts of interest resulting from multiple representation in criminal cases impose heavy burdens on all the participants in the criminal justice system. Although the Supreme Court in Holloway v. Arkansas refused to hold that joint representation is unconstitutional per se, it recently approved Proposed Rule of Criminal Procedure 44(c), which would require trial courts to protect a defendant's right to counsel in this situation. After discussing the current approaches of the courts to the problems presented by joint representation, Professor Tague analyzes the proposed rule. He criticizes the proposed rule for its failure to define the role of the trial …

Federal Discovery: A Survey Of Local Rules And Practices In View Of Proposed Changes To The Federal Rules, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Traditionally, except for the limited role played by pleadings and bills of particulars, the attorney in a law court did not disclose evidentiary matters until trial. "A judicial proceeding was a battle of wits rather than a search for the truth,"' and thus, each side was protected to a large extent against disclosure of his case until counsel chose to disclose it at trial. This philosophy changed some forty years ago with the introduction of discovery in the Federal Rules of Civil Procedure. In the words of Mr. Justice Murphy, the discovery rules meant that "civil trials in the federal …

The Attempt To Improve Criminal Defense Representation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts.

The defendant's only remedy against his attorney's ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for …

[Review Of] Richard A. Levine & George D. Horning, Jr., Manual Of Federal Practice, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Today the federal court is becoming increasingly familiar to the average attorney. Gone is the day when federal practice was limited to a select bar in the largest cities. Going is the day when an attorney can economically and realistically limit himself to the state court practice. Social Security, government contract, tax, labor, federal tort matters now bring the federal presence into every hamlet. Every Congress increases that presence and the occasion for federal court litigation-our increasingly mobile society renders a diversity case more and more usual. Yet many attorneys outside the District of Columbia have not the slightest acquaintance …