Legal Ethics and Professional Responsibility Commons^™

No Longer Left To Their Own Devices: Evaluating The Non-Traditional Medical Device Excise Tax, Kensington A. Wolgamott

Notre Dame Journal of Law, Ethics & Public Policy

When the United States federal government entered a shutdown in the fall of 2013, the budget crisis took center stage in the political debate. The Affordable Care Act (“ACA”) was one of the most contentious issues on the agenda, and among the bargaining chips in the discussion was the disputed issue of the medical device excise tax (“MDET”). The excise tax, imposed upon the sale of certain medical devices, has raised quite a bit of bipartisan opposition and has been up for repeal or reform over a dozen times to date. The increasing attention the tax has received since its …

Religion And Public Reason In The Politics Of Biotechnology, J. Benjamin Hurlbut

Notre Dame Journal of Law, Ethics & Public Policy

Questions about the relevance of religious views to public policy have been central in debates over the governance of biotechnology since the 1960s. This article offers an empirical analysis of moments of deliberative politics surrounding human embryo research, primarily within public bioethics bodies. I examine how these bodies have used the idea of public reason as developed in deliberative democratic theory to differentiate between secular and religious reasons. I argue that scientific authority is made to play a powerful, but largely unacknowledged role in constructing these categories by contributing to definitions of the range of “reasonable” pluralism. I show that …

Three's Company: A Constitutional Analysis Of Prohibiting Access To Three-Parent In Vitro Fertilization, J. Ravindra Fernando

Notre Dame Journal of Law, Ethics & Public Policy

The 1997 science-fiction film Gattaca tells the story of Vincent Freeman, a “God-child,” “de-gene-erate,” “faith birth.” The film unfolds in a not-too-distant future where genetic modification is commonplace and children’s characteristics and predispositions are routinely decided before birth. A rarity in this world, Vincent is conceived without any genetic modification and, consequently, is born with myopia and a congenital heart defect. His inferior genetic profile has banished him to a new subclass of society, so the only way to achieve his lifelong dream of becoming an astronaut is by impersonating a “valid”—a person with a healthy, genetically-engineered DNA.

Criminalization Of Juror Misconduct Arising From Social Media Use, Matthew Aglialoro

Notre Dame Journal of Law, Ethics & Public Policy

This Essay analyzes criminalization as an alternative solution to juror misconduct arising from social media use, where jury instructions fail to prevent such misconduct. Despite the lack of scholarship on the subject, criminalization is far from a radical solution—California enacted legislation in 2011 that sought to criminalize jurors’ improper use of social media. By criminalizing juror misconduct, states can deter misconduct from occurring while also instilling the importance of the jury institution in the public. At the same time, it is important to be cognizant of objections that judges and jurors may raise. This Essay proceeds in three parts. Part …

Catalyst, Obstacle, Or Something In Between? Dealing With The Law In Building Ethical Corporate Culture, Countess Alexandra, Timothy L. Fort

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Behavioral Ethics: Can It Help Lawyers (And Others) Be Their Best Selves?, Robert A. Prentice

Notre Dame Journal of Law, Ethics & Public Policy

Using the principles of behavioral psychology and related fields, marketers have changed human behavior in order to increase sales. Governments have used these same principles to change human behavior in order to advance policy goals, such as increasing savings behavior or organ donations. This article surveys a significant portion of the new learning in behavioral ethics in support of the claim that by teaching behavioral ethics we have a realistic chance to improve the ethicality of human decisionmaking and actions.

A Practical Guide To The Use Of The Commissioned Public Report As An Effective Crisis-Management Tool, F. Joseph Warin, Oleh Vretsona, Lora E. Macdonald

Notre Dame Journal of Law, Ethics & Public Policy

When terrorists attack an energy installation, disaster strikes a nuclear power plant, or a hurricane tears through wide swathes of a city, immediate concern is for the persons affected by the disaster. Close on the heels of this concern is often criticism of how the organization responsible for those persons’ safety has handled the catastrophic event, and an inept response—or one perceived as inept—can spell the organization’s demise. Institutional cracks are laid bare for the world to see, the public narrative turns it from victim to villain, reputational damage mounts, and a wave of public scrutiny and litigation looms. If …

Redressing Lgbt Employment Discrimination Via Executive Order, Alex Reed

Notre Dame Journal of Law, Ethics & Public Policy

The United States workforce includes an estimated 5.4 million lesbian, gay, bisexual, and transgender (“LGBT”) persons. Because no federal statute explicitly prohibits employment discrimination on the basis of sexual orientation or gender identity, employers may discriminate against LGBT workers with impunity, and numerous studies have confirmed that LGBT-related employment discrimination is rampant. Lesbian, gay, and bisexual (“LGB”) individuals experience sexual orientation-based employment discrimination at staggering rates: 8% to 17% have been fired or denied employment, 7% to 41% have been verbally or physically harassed by coworkers, and 10% to 19% have been unfairly compensated in terms of pay or benefits. …

Compliance Officers: More Jobs, More Responsibility, More Liability, Susan Lorde Martin

Notre Dame Journal of Law, Ethics & Public Policy

In response to a great deal of new rule making by federal agencies in the last few years, corporate compliance departments are becoming larger and more involved in businesses in an effort to eliminate regulatory violations and to reduce fines in the event of an offense. At the same time, chief compliance officers who head these departments are becoming increasingly concerned that they will be held liable for the actions of others at their companies merely because they are in charge of their companies’ compliance programs. This article looks at examples of laws that give rise to compliance mandates and …

The Responsible Corporation: Its Historical Roots And Continuing Promise, Larry D. Thompson

Notre Dame Journal of Law, Ethics & Public Policy

During corporate America’s Gilded Age, satirist Ambrose Bierce defined a corporation as “[a]n ingenious device for obtaining individual profit without individual responsibility.” One need not accept that definition to recognize that it captures a debate about corporations that has preoccupied America for more than a century: Does a corporation have any responsibility to society? Or, is its only obligation to maximize profits for its shareholders? Nobel Laureate Milton Friedman famously stated that a corporation has “one and only one social responsibility”— “to increase its profits . . . . ” “Few trends,” he wrote, “could so thoroughly undermine the very …

Executive Power To Provide Material And Financial Support To Foreign Governments And Ngos Linked To Terrorist Groups, Alexa E. Craig

Notre Dame Journal of Law, Ethics & Public Policy

Since the Iran-Contra affair in the 1980s, the President’s power in foreign affairs, while questioned, has been constrained very little. Constitutional questions about executive power in the international arena have largely transformed into statutory ones. While statutes are more adaptable to changing circumstances than the Constitution, the statutory questions continue to address the issues generated by the Framers. Uncertainty regarding the scope of executive power has another cause: courts often dismiss cases about the constitutionality of the President’s actions for standing reasons. For instance, one of the latest cases that could have precipitated a serious discussion of the President’s foreign …

The Endless Bummer: California's Latest Attempt To Protect Children Online Is Far Out(Side) Effective, Stephen J. Astringer

Notre Dame Journal of Law, Ethics & Public Policy

More so than any preceding medium, the Internet has provided users the ability to communicate quickly and without significant restrictions. Today’s children face the challenge of seemingly mundane activities, part of everyday life, that have the potential to ruin futures. A single status update on Facebook, post on Twitter, or video on YouTube can have lasting ramifications. Minors are not the only population to later experience post regret, but unlike politicians, athletes, or any other adults, youthful indiscretion will often lead to less prudent and thoughtful decision-making. Before nearly every person had an Internet-capable camera in their pocket at all …

When The Lawyer Screws Up: A Portrait Of Legal Malpractice Claims And Their Resolution, Herbert M. Kritzer, Neil Vidmar

Faculty Scholarship

No abstract provided.

Setting Your Compass: Some Thoughts From A (Former) Djag, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Globalization And Regulation, Laurel S. Terry

Faculty Contributions to Books

This chapter is part of a 20-chapter book that features essays by subject-matter experts and advances and sharpens the dialogue within the bar about accelerating disruption of the legal services marketplace. It identifies forces that are creating pressure for regulatory change across the United States, summarizes regulatory reforms that have taken place elsewhere in the world, and highlights issues that U.S. lawyer regulators must confront soon in response to a rapidly evolving legal industry. It concludes by offering predictions about the future course of lawyer regulation in the United States. While it is impossible to know exactly which regulatory changes …

Brougham’S Ghost, Michael S. Ariens

Faculty Articles

In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to …

Avoiding Unintended Disclosure: Representing Clients With Hiv And Aids, Lashanda Taylor Adams

Journal Articles

When the HIV/AIDS epidemic was initially recognized in the United States, many attorneys wondered what it would mean to represent a client with HIV. As the number of HIV-infected individuals grew, so did the need for attorneys to represent them. Specifically, attorneys questioned whether or not their duty of confidentiality would expose them to civil liability from failing to protect a third party.1 In response to this concern, several law review articles were written discussing the dilemma faced by attorneys bound by professional rules of conduct.2 These articles focused on the needs of the attorney and the public rather than …

Transformations In Health Law Practice: The Intersections Of Changes In Healthcare And Legal Workplaces, Louise G. Trubek, Barbara Zabawa, Paula Galowitz

Faculty Works

The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a "hot" area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites …

Class Counsel As Litigation Funders, Morris A. Ratner

Faculty Scholarship

No abstract provided.

Apuntes Sobre Aponte Y La Necesidad De Actualizar El Código De Ética Profesional, 84 Rev. Jur. U.P.R. 49 (2015), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

De vez en cuando, nuestro Tribunal Supremo se da a la Tarea de reescribir estatutos para corregir sus deficiencias, y de esta manera decidir casos en la forma que prefiere. En In re Aponte Duchesne, el cual fue decidido en julio de 2014, el Tribunal lo hizo en el proceso de imponer sanciones a una abogada por conducta contraria a la ética profesional. Aunque, en última instancia, la decisión es correcta, el Tribunal comete varios errores en su explicación sobre el Derecho aplicable. Además, su interpretación no se basa en el texto de los cánones de ética aplicables, …