What Fascism Teaches Us,
2016
Benjamin N. Cardozo School of Law
What Fascism Teaches Us, Arthur Jacobson
Articles
The article argues that fascism represents a perverted extreme of conservatism that seeks to protect tradition through the total abandonment of reason and the use of violence. By analyzing the omissions in Leo Strauss's political framework, the analysis posits that the only effective response to the fascist challenge is a model of reason rooted in revelation—specifically the rabbinic Jewish tradition—which provides an irrational basis for maintaining a rational community.
New Models For Prosecutorial Accountability,
2016
Benjamin N. Cardozo School of Law
New Models For Prosecutorial Accountability, Ellen Yaroshefsky
Cardozo Law Review de•novo
There has been significant and increasing attention to prosecutorial accountability for misconduct in recent years by courts and disciplinary authorities, in some prosecutors’ offices and by defense organizations, in academia, and of course, in popular media. In great measure, this attention is the result of the remarkable work of the Innocence Project and Innocence networks around the country. It is also the result of awakening to the fault lines in the criminal justice system—such as mass incarceration—and to the disproportionate targeting of black and brown people for arrest and prosecution. Of course, this attention is all exacerbated by the Internet, …
Enforcing Compliance With Constitutionally-Required Disclosures: A Proposed Rule,
2016
United States District Court for the District of Columbia
Enforcing Compliance With Constitutionally-Required Disclosures: A Proposed Rule, Emmet G. Sullivan
Cardozo Law Review de•novo
To provide a striking example of the need for a federal disclosure rule, in Part I, I briefly summarize a report on the discovery abuses that occurred in the case of United States v. Theodore F. Stevens. In Part II, I describe efforts beginning in 2003 to amend Rule 16. In Part III, I provide an overview of the local district court disclosure rules and standing orders nationwide. Part III also provides the proposed rule now being considered for adoption by the United States District Court for the District of Columbia.
New Rules Of War In The Battle Of The Experts: Amending The Expert Witness Disqualification Test For Conflicts Of Interest,
2016
Brooklyn Law School
New Rules Of War In The Battle Of The Experts: Amending The Expert Witness Disqualification Test For Conflicts Of Interest, Nina A. Vershuta
Brooklyn Law Review
In civil litigation, the big business of retaining experts has raised concerns about the integrity of the adversarial process and undermined the role that expert testimony plays at trial. Due to a rising demand for expert testimony, it is common for the same expert to testify for opposing clients. When a client hires an expert who has been previously retained by that client’s adversary, a conflict of interest arises. Such experts may share confidential information with their new client to the detriment of the former client—triggering the expert disqualification test for conflicts of interest. Most state and federal courts do …
Note, Establishing Rule Of Law Through Informal Justice Systems And Development Programs,
2016
Notre Dame Law School
Note, Establishing Rule Of Law Through Informal Justice Systems And Development Programs, Patrick Akers
Notre Dame Journal of Law, Ethics & Public Policy
Rule of law occurs when a government and its citizens are bound by and abide by the law. Rule of law has no one-size-fits-all approach, and any initiative must take into account cultural norms and how institutions and individuals are incentivized. Informal justice systems are best positioned to do this, particularly for the poor and indigenous ethnic groups. While informal justice systems are criticized for human rights violations and elite capture, among other things, some of these shortfalls are adequately addressed through existing development programs, which are most effective when subject to market forces and when they utilize participatory accountability …
Front Matter,
2016
Notre Dame Law School
The Restricted Nature Of The Profit Motive: Perspectives From Law, Business, And Economics,
2016
Notre Dame Law School
The Restricted Nature Of The Profit Motive: Perspectives From Law, Business, And Economics, Keith William Diener
Notre Dame Journal of Law, Ethics & Public Policy
This essay investigates the permissible limits of the profit motive in business contexts by examining theory and cases from law, business, and economics. This essay aims to remind the reader that the theoretical principles upon which the profit motive is founded require abidance to law, ethics, and customary societal rules. Accordingly, the application of the profit motive as a purported justification for illegal or immoral business decisions does not withstand scrutiny. Part I distinguishes between restricted and unrestricted profit motives, and illustrates this distinction by the use of three business cases that improperly appeal to the unrestricted profit motive. Part …
Roe V. Wade & The Legal Implications Of State Constitutional "Personhood" Amendments,
2016
Notre Dame Law School
Roe V. Wade & The Legal Implications Of State Constitutional "Personhood" Amendments, Clark D. Forsythe, Keith Arago
Notre Dame Journal of Law, Ethics & Public Policy
Two generations after the renewed focus on state constitutions, questions remain whether state constitutional amendments are an effective means for changing public policy, for protecting human life, or for challenging Roe v. Wade. Our aim in this article is to examine their likely legal impact on state law and their legal impact on Roe v. Wade. Part II summarizes the history and current legal protection for the unborn child as a human being or person in the law. Part III examines whether these "personhood" amendments conflict with Roe. Part IV looks at the practical legal implications of applying the due …
Presumption Law In Action: Why States Should Not Be Seduced Into Adopting Joint Custody Presumption,
2016
Notre Dame Law School
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,
2016
Elisabeth Haub School of Law at Pace University
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,
2016
Elisabeth Haub School of Law at Pace University
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,
2016
Ono Academic College
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,
2016
Duke Law School
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,
2016
Penn State Dickinson Law
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 …
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,
2016
University of Missouri-Kansas City School of Law
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.
The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School,
2016
Barry University
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,
2016
Harvard University
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.
Introduction,
2016
UCLA School of Law
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.
Domestic Violence And The Politics Of Self-Help,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Domestic Violence And The Politics Of Self-Help, Elizabeth L. Macdowell
Scholarly Works
Self-help programs are conceptualized as alternatives to attorney representation that can help both courts and unrepresented litigants. The rhetoric of self-help also typically includes empowering unrepresented individuals to help themselves. But how do self-help programs respond to litigants’ efforts at self-advocacy? This Article reports findings from a study of courthouse self-help programs assisting unrepresented litigants applying for protection orders. The central finding is that self-help staff members were not neutral in the provision of services despite a professed ethic of neutrality. Using the sociological concept of demeanor, this Article shows that staff members rewarded protection order applicants who conformed to …
The Ethics Of Non-Traditional Contract Drafting,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
The Ethics Of Non-Traditional Contract Drafting, Lori D. Johnson
Scholarly Works
A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal …
